31
concerned about the lack of proportionality detected: a) between the method used in
view of a conscript’s attempt to escape from the armed forces and the lack of
discipline displayed by said conscript; and b) between the response of the State to
the illegal conduct of the officer and the legally protected interest allegedly affected
– a child’s right to life.
109. In view of these criteria, the Court considers that, in the instant case, the
State failed to fulfill its obligation to carry out a complete and effective investigation
of the alleged torture and extra-legal execution of the minor Gerardo Vargas-Areco,
within reasonable time.
110. Based on the foregoing, the Court finds that the domestic proceedings
initiated in the instant case do not constitute an effective remedy to truly guarantee
the right to fair trial of the relatives of Gerardo Vargas-Areco, within a reasonable
term, including finding the truth about the events, the investigation and punishment
of those responsible and the reparation of the consequences of the alleged torture
and deprivation of the right to life of Gerardo Vargas-Areco. Said circumstances
impose liability upon the State for violation of Articles 8(1) and 25 of the Convention,
in relation to Article 1(1) of said treaty, to the detriment of the relatives of the minor
Vargas-Areco.
IX
RECRUITMENT OF CHILDREN INTO THE ARMED FORCES
111. As previously stated in the section entitled “Preliminary Considerations”, the
Court will provide some general considerations regarding the recruitment of children
into the armed forces (supra para. 61).
112. International law sets forth special rules to protect the physical and
psychological integrity of children while involved in military activities, whether in
times of peace or during armed conflict.
113. As to international humanitarian law, the Additional Protocols to the Geneva
Conventions of August 12, 1949, on the protection of victims of international
(Protocol I) or domestic (Protocol II) armed conflict establish the need to provide
special protection for children. Protocol I establishes that “the Parties to the conflict
shall take all feasible measures in order that children who have not attained the age
of fifteen years do not take a direct part in hostilities and, in particular, they shall
refrain from recruiting them into their armed forces. In recruiting among those
persons who have attained the age of fifteen years but who have not attained the
age of eighteen years, the Parties to the conflict shall endeavor to give priority to
those who are oldest.”47 As regards to fundamental rights, Article 4 of Protocol II sets
forth that “[c]hildren shall be provided with the care and aid they require, and in
particular […] children who have not attained the age of fifteen years shall neither be
recruited in the armed forces or groups nor allowed to take part in hostilities.”48
47
Additional Protocol to the Geneva Conventions of August 12, 1949, relating to the protection of
victims of international armed conflicts (Protocol I), Article 77(2).
48
Additional Protocol to the Geneva Conventions of August 12, 1949, relating to the protection of
victims of non-international armed conflicts (Protocol II), Article 4(c).