Practice Relating to Rule 136. Recruitment of Child Soldiers
El Salvador’s Military Service Law (1992), as amended to 2008, states:
The present Law [on the obligatory military service] will be applicable to all Salvadorans between the ages of eighteen and thirty, without distinction … , and if necessary to all Salvadorans able to engage in military tasks.
It will also apply to minors between the ages of sixteen and eighteen when they voluntarily request to engage in military service, in accordance with this law.
The Law further states:
Salvadorans over the age of sixteen may voluntarily present to the General Direction for Recruitment … a request to provide military service, and the above-mentioned General Direction will accept them in conformity with the needs of the service.
In 2002, in its second periodic report to the Committee on the Rights of the Child, El Salvador stated:
518. The State of El Salvador has taken steps to prevent children from participating in future armed conflicts. Pursuant to the new doctrine of the Armed Forces, an outcome of the Peace Accords, which emphasizes that military training should respect the rule of law and human rights, it was agreed to suspend all forms of forced recruitment and to enact a new Military and Reserve Service Act based on the principles of universality, compulsoriness, equity and non-discrimination of military service.
519. The Constitution (art. 215) stipulates that military service is compulsory for all Salvadorans aged between 18 and 30 years of age. The article reads as follows: “Military service is compulsory for all Salvadorans between the ages of eighteen and thirty. In case of necessity, all Salvadorans who are fit for military service shall be conscripted. This matter shall be regulated by special legislation.”
520. The Legislative Assembly therefore adopted the Armed Forces Military and Reserve Service Act to regulate the matters addressed in the Constitution.
521. The Military Service Act thus stipulates that its provisions apply to all Salvadorans aged between 18 and 30, without distinction as to sex or social, economic or religious status, and, in case of necessity, to all Salvadorans who are fit for military service. The Act also applies to minors aged between 16 and 18 who enlist voluntarily for military service in accordance with the provisions of the Act (art. 2).
522. With regard to the participation of children in future armed conflicts, it may be inferred that such participation is prohibited by law, except where the country’s own needs so require, in which case it must be voluntary. In this connection, the Act (arts. 6 and 11) requires all Salvadorans, within one month of reaching the age of 17, to present themselves at the recruitment and reserve centres of their place of residence and, where appropriate, at the respective offices, in order to be enrolled in the Military Register. However, the Act states that only persons who have reached the age of 18 may be called up, unless persons over 16 years of age present themselves voluntarily. In such cases, they may be accepted in the light of the needs of the service.
[footnote in original omitted]
In 2004, 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, El Salvador stated:
12. Article 6 of the Armed Forces (Military and Reserves Service) Act states that “Salvadorans over 16 years of age may voluntarily submit to the Recruitment and Reserves Department or its subsidiary offices an application to perform military service, and the Department shall accept them according to the needs of the service”.
13. Similarly, article 42 of the Act stipulates that: “Provided the recruitment methods laid down in this Act are applied volunteers may be recruited to make up the strength of the armed forces according to the needs of the service.”
14. On the other hand, the General Staff of the Armed Forces has issued a permanent order “to refrain from accepting minors among newly recruited personnel”, so that the armed forces only recruit volunteers who have attained the age of majority.
15. Through these provisions, the State complies with its obligation to ensure that persons who have not attained the age of 18 years are not compulsorily recruited into the armed forces.
16. El Salvador has raised the minimum age in years for the voluntary recruitment of persons into the armed forces from that specified in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.
17. As for the existence of legal provisions whereby the minimum age for recruitment may be lowered in special circumstances, article 215 of the Constitution provides … that in a situation of extreme emergency, such as an international war or an invasion, all Salvadorans fit for military service shall be soldiers.
18. Article 11, paragraph 11, of the Armed Forces (Military and Reserves Service) Act provides that within one month of their seventeenth birthday Salvadorans are obliged to report to their local Recruitment and Reserves Centres, or where applicable to their respective branch offices, in order to enrol in the Military Register, notwithstanding that only those persons who have attained 18 years of age may be called up.
19. Pursuant to article 3, paragraph 2, of the [Optional] Protocol [on the Involvement of Children in Armed Conflict], El Salvador deposited a binding declaration that sets forth the minimum age at which it will permit voluntary recruitment into its armed forces and describes the safeguards it has adopted to ensure that such recruitment is not forced or coerced.
20. Thus, El Salvador declared in a communication addressed to the Secretary-General of the United Nations that the minimum age for Salvadorans who wish to enlist voluntarily for military service is 16 years, in accordance with articles 2 and 6 of the Armed Forces (Military and Reserves Service) Act. The safeguards adopted by the Salvadoran authorities concerned to ensure that the military service provided is legally voluntary are as follows:
(a) The 16-year-old minor must submit a written request to the Recruitment and Reserves Office or its subsidiary offices, unequivocally stating a desire to perform military service;
(b) Submission of the original birth certificate or minor’s card;
(c) Document certifying knowledge of and consent to the request to perform military service from the minor’s parents, guardian or legal representative, all in accordance with the provisions of title II on parental authority, article 206 et seq. of the Family Code;
(d) Acceptance of the request shall be subject to military service needs.
21. Methods of forced recruitment to enlist young persons in the armed forces are not practised in El Salvador.
In 2006, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to El Salvador’s initial report under the Optional Protocol on the Involvement of Children in Armed Conflict, El Salvador stated:
Voluntary recruitment of children under 18 into the Armed Forces
Article 215 of the Constitution states that “Military service is compulsory for all Salvadorans between the ages of 18 and 30. In case of necessity, all Salvadorans who are fit for military service shall be conscripted. This matter shall be regulated by special legislation.” The Armed Forces (Military and Reserve Service) Act accordingly permits Salvadorans over the age of 16 to present themselves voluntarily at recruitment and reserve centres for enlistment into military service, and allows the centres to accept such volunteers in the light of the needs of the service.
It may be inferred from the above that El Salvador is considering measures to prevent children from taking part in hostilities; Salvadoran law even establishes a higher age for such participation than that laid down in article 38 of the Convention on the Rights of the Child (15 years), and is thus consistent with the [Optional] Protocol [on the Involvement of Children in Armed Conflict].
[emphasis in original]
In 2006, during the consideration of the initial report of El Salvador under the Optional Protocol on the Involvement of Children in Armed Conflict before the Committee on the Rights of the Child, a representative of El Salvador stated:
Even if the law on military service and the reserve armed forces foresees the possibility for minors between the ages of 16 and 18 to undertake voluntary military service, since 2000, military authorities have internally decided to no longer accept any such request. Thus there are no recruits under the age of 18.