39
comprise the corpus juris of the rights of the child,155 it can be derived that the State must
not only abstain from interfering unduly in the private or family relationships of the child,
but must also, according to the circumstances, adopt positive measures to ensure the full
exercise and enjoyment of his or her rights.156 This requires the State, in the context of its
responsibility for the common good, to safeguard the preponderant role of the family in the
protection of the child and to ensure that the public authorities assist the family through the
adoption of measures that promote family unity.157 Furthermore, in the context of internal
armed conflicts, the State’s obligations to children are defined in Article 4(3) of Protocol II
additional to the Geneva Convention, which stipulates that: “Children shall be provided with
the care and aid they require, and in particular: […] (b) all appropriate steps shall be taken
to facilitate the reunion of families temporarily separated […].”158
108. In brief, it was the State’s responsibility to protect the civilian population during the
armed conflict, especially the children,159 who were in a situation of greater vulnerability and
risk of having their rights affected. However, in this case, State agents acted completely
outside the law, using the State’s structures and facilities to perpetrate the forced
disappearance of children through the systematic repression of certain segments of the
population considered subversives or guerrillas, or in some way against the Government.
Consequently, interference with family life has been confirmed, which had an impact not
only on Ana Julia Mejía Ramírez, Carmelina Mejía Ramírez, Gregoria Herminia Contreras,
Julia Inés Contreras, Serapio Cristian Contreras and José Rubén Rivera Rivera, when they
were illegally abducted and retained (supra para. 84), violating their right to remain with
their family group and to establish relationships with other individuals who formed part of it,
but also generated and continues to generate specific effects on each of the members of the
family, as well as on the individual dynamics of each family (infra para. 123).
109. Therefore, the State violated the right to a family, recognized in Article 17(1) of the
Convention, as well as, in application of the iuria novit curia principle, the right embodied in
Article 11(2) of the Convention, in relation to Articles 19 and 1(1) of that instrument, to the
detriment of Ana Julia Mejía Ramírez, Carmelina Mejía Ramírez, Gregoria Herminia
Contreras, Julia Inés Contreras, Serapio Cristian Contreras and José Rubén Rivera Rivera. In
the same way, the State violated Articles 17(1) and 11(2) of the Convention, in relation to
Article 1(1) thereof, to the detriment of the members of their families.
155
Cf. Advisory Opinion OC-17/02, supra note 149, para. 24; Case of Gelman, supra note 16, para. 121, and
Case of Chitay Nech et al., supra note 98, para. 165.
156
Cf. Articles 7, 8, 9, 11, 16, and 18 of the Convention on the Rights of the Child.
157
Cf. Advisory Opinion OC-17/02, supra note 149, para. 88, and Case of The Dos Erres Massacre, supra note
150, para. 190.
158
According to the International Committee of the Red Cross, this obligation has been defined as that “[t]he
parties in conflicto must do everything possible to re-establish family ties; that is not only permit the searches
undertaken by members of dispersed families, but even facilitate them.” Commentary on the Protocol Additional to
the 1949 Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts (Protocol
II). Section B. Family reunion, para. 4553. El Salvador has been a party to Protocol Additional to the 1949 Geneva
Conventions relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) since November
23, 1978.
159
Article 38 of the Convention on the Rights of the Child stipulates:
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.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos