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59.
However, pursuant to Article 53(2) of the Rules of Procedure, the Court
rejects the acknowledgment of the alleged violation of the right to special protection
measures for children set forth in Article 19 of the Convention, in relation to Articles
1(1), 2 and 7 of said treaty, to the detriment of the children of Paraguay or of the
minor Vargas-Areco.
60.
The alleged violation was claimed by the representatives based on the lack of
legal rules, after 1993, to guarantee enforcement of the prohibition against the
recruitment of children under the age of 15 into the armed forces, and the
exceptional nature of the recruitment of children aged 15 to 18. To that respect, the
representatives stated that their claim was not aimed at having the Court impose
liability upon the State for the recruitment of Vargas-Areco, but for a systematic
practice of child recruitment and for the legal rules in force whose mere existence,
after 1993, would infringe per se Articles 2, 7 and 19 of the Convention, since they
allow for Paraguayan children to enlist and remain in the armed forces.
61.
The Court considers that no ruling must be entered in the instant case as
regards to violations of the Convention to the detriment of any Paraguayan child
recruited after 1993, within the scope of an alleged pattern of child recruitment by
the armed forces or under legal rules allowing said recruitment. The alleged victims
are not parties to this controversy. However, notwithstanding the limitations of the
Court to declare the occurrence of a violation resulting from the recruitment of the
minor Vargas-Areco into the armed forces (supra paras. 5 and 53), and considering
the acknowledgment of liability made by the State, and its recent efforts to adapt its
domestic legislation to satisfy international law requirements regarding child
recruitment into the armed forces, the Court will proceed to include in the
appropriate chapter of this Judgment (infra paras. 111 to 134) some general
considerations regarding child enlisting in the armed forces. Said considerations will
be based on the duty of the Court to protect human rights and the obligation of
States to guarantee the rights of children at all instances.
62.
Besides the aforementioned circumstance of a ruling on alleged violations
suffered by individuals who are not parties to the dispute brought before the Court,
the alleged violation of the rights set forth in Article 19 of the Convention, to the
detriment of the minor Vargas-Areco, cannot be analyzed without reviewing other
events occurred before the jurisdiction of the Court was recognized in the instant
case. The minor Vargas-Areco died on December 31, 1989, more than three years
before the date when jurisdiction was recognized. Similarly, the State ratified the
Convention on August 24, 1989, while the child was recruited on January 26, 1989.
Therefore, given that the acknowledgment made by the State only covers those
violations occurred after March 26, 1993, the Court lacks jurisdiction to prosecute
the State for the recruitment and continuance of Vargas-Areco in the armed forces
as from 1989, and for his death in the same year.
63.
Pursuant to the precedents of the Court, in the case of continuous or
permanent violations beginning before approval of the jurisdiction of the Court and
continuing thereafter, the Court has jurisdiction to examine any acts and omissions
occurred after recognition of jurisdiction, and their pertaining effects.7 The alleged
Cf. Case of the Girls Yean and Bosico. supra note 6, para. 106; Case of the Moiwana Community.
Judgment of June 15, 2005. Series C No. 124, para. 39; Case of the Serrano-Cruz Sisters. Preliminary
Objections, supra note 6, para. 67.
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