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Ramón Hilario Morán, Francisco Hilario Torres, and their families came about because the soldiers perceived them
as members or relatives of members of subversive groups. Therefore, the Commission believes that in the instant
case the violation of the rights of the children was designed to punish all the members of the two families as well
as to have an chilling effect on the rest of the community and, in general, all the residents in the area.
220.
Consequently, the IACHR notes that in the instant case, the State not only failed to provide the
seven disappeared children the guarantees and protection due to them by reason of their vulnerability, but also,
through its agents, actively caused their rights to be violated. Consequently, it is clear that the seven children:
Yessenia (age six years), Miriam (age three years), and Edith Osnayo Hilario (age eight months); Wilmer Hilario
Carhuapoma (age three years); Alex Jorge Hilario (age six years), and the brothers, Raúl (age 18 months) and
Héctor Hilario Guillén (age six years), failed to receive those special measures of protection that their greater
vulnerability due to their young age required. In light of the foregoing, the Commission concludes that the State of
Peru violated its obligations under Article 19 of the Convention, in connection with Article 1(1) thereof, to the
detriment of the above seven children.
221.
Finally, the Commission also notes that according to the proven facts, the child P.C.M, a
supposed deserter from Shining Path, acted as a guide in the above operation, despite the prohibition of child
recruitment into the armed forces or armed groups and their use in hostilities, in contravention of the
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international corpus iuris for the protection of the rights of the child .
4.
Right to Protection of the Family (Article 17(1) of the American Convention)
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222.
In view of the fact that the victims in the case belonged to two families, the Commission
considers it pertinent to examine the obligations of the State under Article 17 of the American Convention, which
recognizes that the family is the natural and fundamental group unit of society and is entitled to protection by
society and the State. The Inter-American Court has held that the protection of the family and its members is
guaranteed also in Article 11(2) of the Convention that encompasses the prohibition of arbitrary or abusive
interferences with the family, as well as by Article 19, that determines the protection of the rights of the child by
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the family, society, and State.
223.
The Commission notes that the very nature of the systematic disappearance of persons entails,
among the goals sought with its practice, the predetermined infliction of severe harm on the social structures,
collectives, and institutions against which it is used. Forced disappearance is normally part of a counterinsurgency
policy and, as such, at the same time as it seeks to eliminate abductees with impunity, its goals can also include the
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Article 4 of the Additional Protocol of the Geneva Conventions, ratified by Peru on July 14, 1989, establishes the
prohibition to recruit children less than fifteen years into armed forces or groups and to participate directly in hostilities.
Additionally, Articles 2 and 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict, ratified by Peru on May 8 of 2001, establishes the obligation to impede the recruitment and use in
the hostilities of people less than 18 years by armed groups different than the Military, including the legal measures to prohibit
and criminalize these practices. Furthermore, Article 6.3 of the above mentioned Protocol establishes “States Parties shall take
all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present
Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all
appropriate assistance for their physical and psychological recovery and their social reintegration”. See also: UN Security
Council Resolutions 1261 (1999), 1314 (2000), 1379 (2001), 1460 (2003), 1539 (2004) y 1612 (2005) and, UN General Assembly
resolutions A/RES/51/77, A/RES/53/128, A/RES/54/149, A/RES/54/263, A/RES/55/79, A/RES/56/138, A/RES/57/190,
A/RES/58/157, A/RES/59/261, A/RES/60/231, A/Res/61/146, A/Res/62/141, A/RES/63/241 y A/RES/64/146.
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Article 17(1) of the American Convention provides, “The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.[...].”
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I/A Court H.R. Case of Chitay-Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations and Costs
Judgment of May 25, 2010. Series C, No. 212, par. 156.