74
1.
States Parties undertake to respect and to ensure respect for rules of international
humanitarian law applicable to them in armed conflicts which are relevant to the child.
[...]
4.
In accordance with their obligations under international humanitarian law to protect the
civilian population in armed conflicts, States Parties shall take all feasible measures to ensure
protection and care of children who are affected by an armed conflict.
332.
The Commission also considers that in the present case, the interpretation of Article 19 of
the American Convention must also take into account Additional Protocol II to the Geneva Conventions,
353
by invoking the international corpus juris of protection of the child in the context of an armed conflict.
In
this respect, Article 4 of the said treaty establishes that all necessary care and help must be given to the
children. In this context, the State has "the obligation to provide children [..] with the necessary
assistance and care, to avoid bodily harm, mental trauma and to ensure development as normal as
354
circumstances permit."
333.
The Colombian State has recognized, through its Constitutional Court, the differenciated
impact caused by displacements in children and adolescents, which is most critical when it affects
355
afrodescendant communities .
334.
In the present case, during the armed operations the children suffered from the violence
caused by the State and which provoked their forced displacement. In this respect, it should be stressed
that Article 37.a of the Convention on the Rights of the Child establishes that States must ensure that
"[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment."
335.
For its part, the Convention on the Rights of the Child provides that children belong to an
ethnic minority shall not be denied the right to enjoy their own culture, in common with the other members
356
of the group.
Accordingly, the Committee on the Rights of the Child has established that to determine
357
what are the overriding interests of children from minority groups, the State authorities must take into
358
account their cultural rights.
This obligation is coupled with the States' duty to provide children with an
359
education designed to teach them their own cultural identity and values, which must continue even in
360
cases of displacement.
The Human Rights Committee has also established that if a child belonging to
an ethnic minority is placed outside his or her community, the State must adopt special measures so that
361
the child can preserve its cultural identity.
353
I/A Court H.R. Case of the “Mapiripán Massacre” v. Colombia. Merits, Reparations and Costs. Judgment of September
15, 2005. Series C No. 134, para. 153.
354
CICR.
Comments
on
Additional
Protocol
II
to
the
Geneva
Conventions
of
1949.
In:
http://www.icrc.org/Web/spa/sitespa0.nsf/html/950B5D7D9CEA18B2C1256E2100501C7D?OpenDocument&Style=Custo_Final.3&V
iew=defaultBody10#2
355
Annex 98. Constitutional Court of Colombia Auto 251 of 2008 about the protection of fundamental human rights of
children and adolescents displaced by the armed conflict, in the framework of overcoming the unconstitutional state of affairs
declared by judgment T-025 of 2004, pp. 13-14.
356
Art. 30 of the UN Convention on the Rights of the Child, November 20, 1989.
357
Annex 97. UN Committee on the Rights of the Child, General Comment No. 11, refers to the rights of indigenous
children, but also to children of minority groups. "[c]ertain references in this general comment may be relevant for children of
minority groups."
Indigenous Children and their rights under the Convention, of February 12, 2009, para. 15.
At:
http://www2.ohchr.org/english/bodies/crc/comments.htm.
358
Annex 97. UN Committee on the Rights of the Child, General Comment No. 11, Indigenous Children and their rights
under the Convention, of February 12, 2009, para.31. At: http://www2.ohchr.org/english/bodies/crc/comments.htm.
359
This obligation is contemplated in Article 2 of the Convention on the Rights of the Child.
360
Annex 90. Principle 23 of the UN Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 of February 11,
1998. See:http://www.un-documents.net/gpid.htm.
361
Annex 97. UN Committee on the Rights of the Child, General Comment No. 11, Indigenous Children and their rights
under the Convention, of February 12, 2009, para. 48. At: http://www2.ohchr.org/english/bodies/crc/comments.htm.