31
violation of Article 7 of the American Convention.112 In the instant case, the Court has
verified that State agents illegally took and kept the children, separating them and removing
them from the custody of their parents or next of kin (supra paras. 60, 65, 66 and 75 to
77), which impaired their liberty in the broadest sense of Article 7(1) of the Convention.113
85.
The Court’s consistent case law recognizes that depriving individuals of liberty and
placing them in the custody of official repressive bodies, State agents, or private individuals
acting with the State’s acquiescence or tolerance that perpetrate torture and murder with
impunity represents in itself a breach of the obligation to prevent violations of the right to
personal integrity, even when the acts that violate the rights cannot be proved.114 In this
case, the Court understands that the abduction of the children and their separation from
their parents or next of kin under the conditions described, as well as the fact that they were
taken into the custody of military personnel during a military operation, harmed the mental,
physical and moral integrity of the children, a right recognized in Article 5 of the American
Convention,115 Leading to feelings of loss, abandonment, intense fear, uncertainty, anguish,
and pain, all of which could vary or intensify depending on age and the specific
circumstances.116
86.
In addition, in the specific case of children separated from their parents or next of kin
in the context of armed conflict, who are in a situation of special vulnerability, their
appropriation, with different objectives, is often considered a normal consequence of armed
conflict or, in any case, inherent in it, which is what happened, at least in the case of
Gregoria Herminia. Treating children as objects susceptible of appropriation harms their
dignity and personal integrity, and it is the State that should ensure their protection and
survival, as well as prioritize measures to promote family reunification.117 In this regard, the
Inter-American Court has indicated that an obligation exists to apply “the highest standard
112
Cf. Case of Heliodoro Portugal v. Panama. Preliminary objections, merits, reparations and costs. Judgment
of August 12, 2008. Series C No. 186, para. 112; Case of Gelman, supra note 16, para. 91, and Case of Gomes
Lund et al. (Guerrilha do Araguaia), supra note 97, para. 122.
113
Article 7(1) of the Convention establishes that: “[e]very persons has the right to personal liberty and
security.”
114
Cf. Case of Velásquez Rodríguez, supra note 23, para. 175; Case of Gelman, supra note 16, para. 95, and
Case of Gomes Lund et al. (Guerrilha do Araguaia), supra note 97, para. 122.
115
Article 5(1) of the Convention stipulates that: “[e]very persons has the right to have his physical, mental
and moral integrity respected.”
116
“Each child reacts differently to the impact of armed conflict. Their response depends on their age, gender,
personality type, personal and family history, cultural background and experience, as well as on the nature and
duration of the event.” United Nations, The Machel review, 1996-2000: a critical analysis of progress made and
obstacles encountered in increasing protection for war-affected children, A/55/749, 26 January 2001, p. 27. For
example, among the different circumstances that can influence the psychosocial repercussions of violence on
children, “include individual factors such as age, sex, personality type, personal and family history and cultural
background. Other factors will be linked to the nature of the traumatic events, including their frequency and the
length of the exposure. Children who suffer from stress display a wide range of symptoms, including increased
separation anxiety and developmental delays, sleep disturbances and nightmares, lack of appetite, withdrawn
behaviour, lack of interest in play, and, in younger children, learning difficulties. In older children and adolescents,
responses to stress can include anxious or aggressive behaviour and depression.” United Nations, Impact of armed
conflict on children, Report of the expert of the Secretary General, Ms. Graça Machel, submitted pursuant to
General Assembly resolution 48/157, A/51/306, 26 August 1996, para. 168. Similarly, in the context of flight from
armed conflict, “[a]lthough the decision to leave is normally taken by adults, even the youngest children recognize
what is happening and can sense their parents' uncertainty and fear.” United Nations, Impact of armed conflict on
children, supra, para. 67.
117
Cf. United Nations, The Machel review, 1996-2000, supra note 116, pp. 14 and 27. In addition, see
Convention on the Rights of the Child and provisions of international humanitarian law, such as Article 4(3) of the
Protocol Additional to the 1949 Geneva Conventions relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II).
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