62
a concrete case, the subjection of detained persons to state agents or individuals who act with their
acquiescence or tolerance that with impunity and practice torture and killing represents, in itself, an
infringement of the duty to prevent violations of the rights to personal integrity and to life.337
201. Furthermore, the Court has considered that, in cases of forced disappearance, in
response to the multiple and complex nature of this severe violation of human rights, this crime leads to
the specific violation of the right to recognition as a person before the law.338 This is because, in addition
to the fact that the disappeared person cannot continue to enjoy and exercise the rights of which
she/he is a bearer, forced disappearance is “not only one of the most serious forms of placing the
person outside the protection of the law but it also entails to deny that person's existence and to place
him or her in a kind of limbo or uncertain legal situation before the society [and] the State.”339
4.
General considerations about the rights of children in an armed conflict
202. Article 19 of the American Convention indicates that: “Every minor child has the right to
the measures of protection required by his condition as a minor on the part of his family, society, and
the state.” As provided for by the Court, this provision must be construed as an additional and
complementary right, which the treaty has established for human beings which, because of their
physical and emotional development, require special protection.340 As a result, children are bearers not
only of the human rights that pertain to all persons, but also of those special rights stemming from their
status.
203. Regarding this, the Court contended that “the adoption of special measures for the
protection of the child pertains to both the State and the family, community and society to which the
child belongs.”341 These measures must be based on the principle of the higher interest of children,
which is founded on: i) their own specific characteristics; ii) the need to promote their development with
the full utilization of their potential; and iii) a human being’s own dignity.342 The Court has also been
337
I/A Court H.R., Case of Ticona Estrada v. Bolivia. Merits, Reparations and Costs. Judgment of November 27, 2008.
Series C No. 191, paragraph 59; Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs.
Judgment of September 22, 2009. Series C No. 202, paragraph 85; and Case of Radilla Pacheco v. Mexico. Preliminary
Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, 154.
338
I/A Court H.R., Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of
September 22, 2009. Series C No. 202, paragraphs 91-92; Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, paragraph 157.
339
I/A Court H.R., Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of
September 22, 2009. Series C No. 202, paragraph 90.
340
I/A Court H.R., Case of the Ituango Massacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2006. Series C No. 148, paragraph 106; Case of Baldeón García v. Peru. Merits, Reparations and Costs.
Judgment of April 6, 2005. Series C No. 147, paragraph 244; Case of the Mapiripán Massacre v. Colombia. Merits, Reparations
and Costs. Judgment of September 15, 2005. Series C No. 134, paragraph 152; Case of the “Juvenile Reeducation Institute” v.
Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, paragraph
147; and Case of Servellón García and others v. Honduras. Merits, Reparations and Costs. Judgment of September 21, 2006,
paragraph 113.
341
I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002.
Series A No. 17, paragraph 62.
342
I/A Court H.R., Case of the Ituango Massacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2006. Series C No. 148, paragraph 244; Case of the Mapiripán Massacre v. Colombia. Merits, Reparations
and Costs. Judgment of September 15, 2005. Series C No. 134, paragraph 134; Case of the Girls Yean and Bosico v. Dominican