OEA/Ser.L/V/II.111
doc. 21 rev.
6 April 2001
Original:  English/Spanish

FIFTH REPORT ON THE SITUATION OF 
HUMAN RIGHTS IN GUATEMALA

CHAPTER XII

THE RIGHTS OF THE CHILD

1.          It is only since the signing of the peace that the youth of the country have been able to escape from the constant shadow of the armed conflict -- a conflict which took many children as its victims, and caused many of those who survived great hardship, suffering and grief. Peace is an essential precondition for the children of Guatemala to be able to exercise their basic right to develop and realize their full potential.

2.          It is estimated that over half of the Guatemalan population is under 18 years of age, and that the majority of the country’s youth pertains to one of its indigenous peoples.[1]  The young represent both a majority of Guatemalan society and its hope to construct the ”system of personal liberty and social justice based on respect for the essential rights” of every person set as the objective of the American Convention.  The peace accords must serve as a commitment to the children of the country to redouble efforts to resolve the causes that provoked the conflict and the problems it created, in order to ensure a peace that is truly firm and lasting. 

          3.          The present chapter focuses on a question that is central to the situation of Guatemalan children: the lack adequate legal and institutional measures for their protection.  In the first place, as is widely acknowledged, the legal framework currently in effect with respect to minors is markedly deficient in multiple ways.  While a new Code of Childhood and Youth was in fact approved by the Congress in 1996, and published, its entry into force has been repeatedly and indefinitely suspended.[2]  The inadequacies of the current normative structure further erode the weak institutional mechanisms that exist. 

4.          In the second place, the deficiencies that characterize the administration of justice as a general matter signify that the rights of children are vulnerable to abuse which is not met with proper investigation, prosecution and punishment.  In addition to the impunity that exists with respect to violations against children, minors who are subjected to the judicial system for reasons of neglect, abuse or delinquency are not accorded the measures of protection necessary to safeguard their rights.  The Ombudsman for Human Rights has cautioned that:

[T]he Judicial System in effect for minors has to date been constituted as an arm of the State that violates the human rights of the boys, girls and youths that come before it – both as victims and as transgressors.  The Judicial System defends its action under an obsolete law, drafted along the lines of the doctrine of the irregular situation, thereby contradicting the principles of integral protection contained in the United Nations Convention on the Rights of the Child.[3]

A.          Legal Framework

1.         National Law

5.          Articles 1 and 2 of the Constitution affirm that the State is organized to protect the person and the family, and shall guarantee the right to “life, liberty, justice, security, peace and the integral development of the person.”  In the penal sphere, Article 20 establishes that minors who transgress the law cannot be punished.  “Their treatment must be oriented toward comprehensive education for children and youth.”  Further, they must be dealt with by specialized institutions and personnel, and may not be detained in facilities used to detain adults.  Title II, chapter II provides in its first section for measures of protection for the family.  Article 47, for example, provides for the social, economic and juridical protection of the family.  Article 50 establishes that all children are equal before the law, and Article 51 establishes that the State shall protect the “physical, mental and moral health” of children.  The fourth section of the chapter provides for the right to education, and specifically sets forth that primary education is compulsory and free of charge.  In relation to the labor sphere, Article 102(l) provides that “minors of 14 years may not work, save for the exceptions provided by law.”  “It is prohibited to have minors perform work incompatible with their physical capacity, or which places their moral development at risk.”

6.          The legal regime applicable to minors, defined as all persons under the age of 18,[4] is set forth in the Code of Minors of 1979.  As noted above, that Code was to have been replaced in 1996, but the entry into force of the new Code has been indefinitely suspended.  One of the reasons the new Code was promulgated was the need to bring Guatemalan law into conformity with the UN Convention on the Rights of the Child, which Guatemala ratified in May of 1990.  In reviewing Guatemala’s first report under the Convention on the Rights of the Child, just prior to the signing of the peace, the Committee on the Rights of the Child expressed strong concern that the Code in effect contains provisions incompatible with the treaty, and further, does not reflect all the rights recognized therein.[5]

7.          The Code in force has been characterized as contravening not only the Convention on the Rights of the Child, but also the Constitution, including insofar as the latter provides for the primacy of international human rights treaties in effect in Guatemala over other internal law.[6]  Among the aspects identified as most problematic are, inter alia: that it is based on the anachronistic doctrine of the “irregular situation,” which characterizes the child as a passive, incompetent subject, as opposed to the doctrine of “integral protection” upon which the Convention on the Rights of the Child is based; the fact that judges are authorized to both investigate and sentence in cases concerning minors; the absence of any provision requiring legal counsel or interpretation in proceedings against minors; and the mixing of measures applicable to children who are victims with those applicable to those who have transgressed the law.[7]

          8.          In its observations to the draft report, the State emphasized that it shares the Commission’s judgment that the existing Code “contains norms that contravene the most recent dispositions accepted and ratified by the State in this area at the international level,” and considers that the efforts underway toward the adoption of a new code “represent a significant attempt to bring domestic law into conformity with new trends” in applicable international law.  It also mentioned, in relation to measures adopted to accelerate the processing of charges filed against minors, that various institutions are charged with this objective, for example, the Courts for Minors and the Office of the Prosecutor for Minors.  The Office of the Ombudsman for Minors of the Attorney General’s Office provides follow-up in cases of human rights violations in which minors are indicated to be victims.  In the sphere of public policy, the State reported that Commissions on Childhood and Adolescence were about to be established within the Development Councils that function at the municipal, departmental and regional levels.  This development represents an interesting opportunity to incorporate the principle of integral protection of the child in public policy at the local level, and the Commission looks forward to receiving more specific information about the mandate and guidelines that will define the work of these Commissions.

          9.          The peace accords reflect some positive commitments in favor of the protection of the rights of the child, the full implementation of which would bring about important advances.  Most especially, the Agreement on Social and Economic Aspects sets forth the State’s undertaking to expand the coverage of education, and to ensure that all children between 7 and 12 years of age have access to at least three years of schooling by 2000.  In relation to this Agreement, as well as that concerning Indigenous Rights and Identity, a special emphasis is placed on the need to provide bilingual education in rural communities.  With respect to health, the State committed itself to cut the maternal and infant mortality rates in half by 2000.  In the sphere of labor, the State undertook to promote protective labor legislation, and to improve labor inspection services, paying particular attention to vulnerable workers, such as children.  While there have been improvements in some areas, for example nascent efforts with respect to bilingual education and partial labor legislation reform, these basic goals have not yet been met.[8] 

2.                 International Law

10.          Article 19 of the American Convention provides that, "[e]very 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."  Accordingly, in addition to the measures a State Party must adopt pursuant to Articles 1 and 2 of the American Convention to ensure that all persons subject to its jurisdiction, adults and children alike, may exercise their protected rights, the implementation of Article 19 requires the adoption of specific measures aimed at the protection of children.[9]  Pursuant to Article 27 of the Convention, this duty of special protection may not be suspended under any circumstance.  In view of children’s special vulnerability by reason of their status and inability to secure the protection of their own rights, the American Convention further includes express provisions for their protection in connection with specific rights as well, for example, in Articles 4(5), 5(5) and 17(4) and 18.   

          11.          The Additional Protocol to the American Convention on Economic, Social and Cultural Rights (“Protocol of San Salvador), to which Guatemala became a Party on October 5, 2000, provides a number of measures that have special importance with respect to the rights of children, particularly as related to issues of education and work.  Article 13 recognizes the right of every person to education, and most especially to primary education that is compulsory and accessible to all without cost.  Article 7 provides for the right to just, equitable and satisfactory conditions of work, and with respect to minors, requires Parties to prohibit work that jeopardizes their health, safety or morals, and to ensure that work is subordinated to the provisions concerning compulsory education.

12.          As noted, Guatemala has been a Party to the UN Convention on the Rights of the Child since 1990, having been the sixth State to ratify that treaty.  Together, Article 19 of the American Convention and the Convention on the Rights of the Child form part of a comprehensive international corpus juris for the protection of the child, and the specific terms of the latter help inform the interpretation of the former.[10]  Pursuant to Article 2 of the Convention on the Rights of the Child, Parties undertake to observe the comprehensive set of rights recognized therein with respect to each child subject to their jurisdiction without distinction as to the status, activities, opinions or beliefs of the child, his parents, or his legal guardians.  States Parties must also protect these persons against discrimination or punishment based on such grounds.  Article 3 defines the overarching principle of the Convention that, in all actions concerning children, “the best interests of the child shall be a primary consideration.”  In complementarity with the rights and duties of the parents or legal guardians, the State is responsible for ensuring the child the protection and care necessary for his or her well-being, through the adoption of the legislative, administrative and other measures necessary to implement the undertakings of the Convention.  On September 7, 2000, the State signed the facultative protocols to this Convention, and these were placed under consideration for subsequent approval by the legislature.  The Commission values this step and encourages the prompt ratification of these instruments in order to further fortify the existing legal framework.

13.          Guatemala is also Party to a series of conventions of the International Labor Organization concerning work and minors, the most relevant of which is Convention 138, which defines minimum ages for basic categories of employment.  The objective of this Convention is to ensure that work is subordinated to the completion of primary education, and to prevent children from being exposed to dangerous working conditions.    

          B.          Children and Economic and Social Rights

          1.          Children and Poverty

14.          In most cases, to be young in Guatemala means to be poor; reports indicate that 83% of Guatemala’s youth grows up in poverty.[11]  Children are affected by this poverty from the time of their birth.  The rate of deaths to live births is 52 to 1000, the highest in Central America, principally due to lack of prenatal attention for the mother and/or care during the birth.[12]  UNICEF reports that, for the period 1990-1999, 34% of births were attended by a medical professional or midwife.  This represented only a 1% improvement from the period 1983-1990.[13]  The incidence of low birth weight was reported as 15% for the period 1990-97, having worsened 1% since the figure reported for 1990.[14] 

15.          The indices for infant mortality and under-5 mortality have experienced important improvements, but remain over the average for the reporting region of Latin America and the Caribbean.  The rate of infant mortality decreased from the 1990 rate of 54 per 1000 to 41 per 1000 as of 1998.  The regional averages were 51 and 32 for the same periods.[15]  The rate of under-5 mortality per 1000 live births dropped from 94 in 1990 to 52 in 1998.  The regional averages were 69 and 39 for the respective periods.[16]  These improvements show progress, and the potential for realizing necessary additional gains.

16.          During the very first years of life, malnutrition is one of the principal causes of death.  The Human Rights Office of the Archbishop reported that the situation of chronic malnutrition in Guatemala that affects 46% of children between birth and five years of age is the worst in Latin America.[17]  On the positive side, Guatemala is above the regional average for Vitamin A supplementation coverage, at 57%, compared to 52% regionally.  Such supplementation is an inexpensive way to prevent some basic health problems; the goal for Guatemala and the region for 2000 is 100% coverage.

17.          The right of the child to special measures of protection requires that the State take measures to prevent minors from being subjected to violations of their rights, and to respond with due diligence to any violations that take place notwithstanding those efforts.  The duty of prevention extends to rights of both a civil and political, and an economic, social and cultural nature, as required.[18] 

18.          Problems with the system for providing personal documentation -- necessary to obtain many basic services -- continue to affect significant portions of the population.[19]  This is an area in which some important progress has been made, particularly with respect to returned refugees, and with respect to which further progress is eminently possible and necessary.  The deficiencies that persist in relation to identification documentation have a special importance in relation to the question of adoption and trafficking in children, which is analyzed below.

19.          Article 27(1) of the Convention on the Rights of the Child recognizes the right “to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.”  While the American Convention and Convention on the Rights of the Child recognize that primary responsibility necessarily rests with the family, these instruments provide that children at special risk merit and require measures of legal protection from the State.[20]  Article 27(3) of the Convention on the Rights of the Child expressly provides that States shall “in accordance with national conditions and within their means [] take appropriate measures to assist parents … and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.” 

20.          Accordingly, as the Commission has indicated in other contexts, the State has the obligation, within its means, “to intervene to satisfy the basic needs of the child, when his family is not in a condition to do so, before the child is forced to go out into the street because he does not have a roof over his head or to seek money, through work, theft, or begging in order to feed himself.”[21]  The Commission closely monitors the situation of street children in Guatemala, and is aware that many children have been forced to take to the streets and to work, not just for their own subsistence, but also to help support other family members.  The duty of the State to take special measures of protection in this sense signifies that the question of basic living standards for children must be given priority in State programs and public spending.  The highly precarious situation of children who are forced to make their lives on the streets is discussed below. 

2.          Children, Work and Access to Education

21.          While it is difficult to estimate with precision, over 750,000 Guatemalan children work, constituting approximately 17% of the economically active population.[22]  This number continues to rise.[23]  The issue isn’t whether these children work or not; the necessities of survival require that they do.  The issue is whether the conditions under which they work are just, healthy and safe, and whether the necessity of working means they are deprived of other rights, such as access to education. 

22.          Most child workers are between 10 and 17 years of age, but some begin to work much earlier.  They work in the formal and informal sectors, including the agricultural sector, in factories, and in the commercial and service sectors.[24]  Three-quarters of child workers work in excess of the legal work-week of 35 hours.[25]  On average they receive half the salary paid to an adult, with girls receiving less than boys.[26]  Significant numbers of children work in such dangerous places as quarries, cutting rock by hand, and mines, as well as all kinds of factories, including clandestine factories for making gunpowder.[27]  They serve as heavy labor, work with heavy machinery, work as roving vendors and shining shoes, work with pesticides and fertilizers, and work as pickers and cutters.  Roughly 100,000 girls between 10 and 14 years of age reportedly work as domestics.[28]  Many children work in the streets and at night. Some children beg to get by, and some are engaged in such dangerous activities as prostitution, drug trafficking, the running of contraband and robbery.[29] 

23.          An explosion at one such gunpowder factory in Sacatepéquez in July of 2000, which left two minors dead, highlighted the dangerousness of some of these situations.  In the wake of those deaths, the UNICEF representative for Guatemala called for State action with respect to minors doing high-risk work oriented: (1) to facilitate access to school; (2) to promote public policies to aid the poorest families; and, (3) to modify existing legislation to protect minors in accordance with the Convention on the Rights of the Child.[30]  Reports indicate that, after an inspection by the Ministry of Work following the explosion, the factory was closed for failure to offer safe conditions for its workers and for having hired minors, and that the Ministry had committed itself to establishing a system to pay for the school attendance of children working in such factories so as to encourage them to leave that kind of dangerous work.  The Commission considers that this would be a very promising measure and looks forward to receiving more information about the scope of the program and the steps taken. 

24.          The larger problem, however, is the lack of effective legislation, work-place inspections, and sanctions to ensure that minors are not exposed to such dangerous conditions in the first place.  ILO Convention 138 provides in Article 9 that Parties shall take “all necessary measures, including the provision of appropriate penalties” to ensure the enforcement of its terms.  Labor inspection services are of particular importance in this regard.  While the Agreement on Socioeconomic Aspects calls for such services to be strengthened, particularly in relation to vulnerable workers, measures have yet to be taken to ensure that protection.[31]

25.          The UN Committee on the Rights of the Child indicated several years ago that many Guatemalan children were not attending school precisely because of the demands of having to work to survive.[32]  It is estimated that at least 450,000 children between seven and 14 years of age are directly affected in terms of their education, because of absenteeism, dropping out, or being held back in school due to the demands of working.[33]  Reports indicate that work constitutes a serious obstacle to obtaining even a primary education.  The majority of the population has less than three years of schooling.  The last reported figure indicated that only 34% of those who begin primary school reach fifth grade, placing Guatemala dead last in the ranking of countries of Latin America and the Caribbean.[34]  As of 1998, it was reported that only 19.5% of children in Guatemala attend secondary school.[35]  As indicated in chapter III, supra, rural and primarily indigenous communities are most excluded from access to education.[36]  The link between years of schooling and the potential to overcome poverty is well-documented, and makes evident the need to further prioritize advances in primary education.

C.          The Effect of the Armed Conflict on Children

26.          Within the context of the State’s commitments under the peace accords, it is essential to pay to the extent of the psychological and moral devastation that the conflict caused to the children of Guatemala.  The Commission for Historical Clarification concluded that:

A large number of children were [] among the direct victims of arbitrary execution, forced disappearance, torture, rape and other violations of their fundamental rights.  Moreover, the armed confrontation left a large number of children orphaned and abandoned, especially among the Mayan population, who saw their families destroyed and the possibility of living a normal childhood within the norms of their culture, lost.[37]

27.          Accepted figures indicate that the conflict resulted in the displacement of over a million persons, and left 200,000 children orphaned, and 40,000 women widowed.[38]  As described in chapter XIV, infra, those who were displaced suffered all the effects of uprooting, with the disruption to family life, and resulting conditions of increased vulnerability in terms of insecurity and marginalization.  That chapter also describes the additional stresses of the process of reincorporation.  The REMHI project compiles powerful testimonies that document the way in which children were victimized by the conflict, both through their first-hand experience as victims and witnesses, and as indirect victims of violations against parents and other family members.  Children were more vulnerable to violations due to their lack of understanding of the risk and mechanics of the violence, and were and remain deeply affected by the deprivation of the security, trust and care required for normal development.[39]  The REMHI report emphasizes the importance of clarification so that children can try to understand and attribute meaning to the violations and acts of violence committed.[40]

          28.          One of the pending issues from the conflict that is just beginning to be explored is the fate of the children who were kidnapped or forcibly disappeared during the conflict. The most comprehensive study on this question, published by the Human Rights Office of the Archbishop of Guatemala in 2000, estimates that over 400 children disappeared during the conflict.[41]  In its observations on the draft report, the State characterized that this report of the ODHAG “can be considered serious” and that “the statistics contained therein may be considered accurate.”  Other sources suggest that the number could be up to several thousand.  The ODHAG report estimates that in approximately 86% of the cases, the children were forcibly disappeared, and in the remaining 14% they disappeared as the result of circumstances of the conflict.[42]  It further estimates that in 92% of the total number of cases, responsibility rests with the armed forces.[43]  Reports indicate that some children were saved from massacres to be adopted by army officers, or to be taken to their homes to act as servants.[44]  For example, one survivor of the massacre of Las Dos Erres, then six years old, was taken by one of the soldiers who participated in the killing of the village and the members of the boy’s family.[45]  Another, who was three months old when her family was killed in Las Dos Erres, was taken and adopted by one of the soldiers.[46]  Another girl, who was three years old when her family was killed in San Gaspar, Chajul, Quiché in 1982, was taken by soldiers to Guatemala City.  There she was abandoned, and an evangelical organization arranged for her adoption abroad.[47]  In most cases, the fate of the disappeared is simply not known.

29.          One of the crucial recommendations that has arisen as a result of the report of the Commission for Historical Clarification, the REMHI project’s report Nunca Más and the ODHAG’s Hasta Encontrarte is the need to establish a special commission to clarify the fate of disappeared children and adults.  President Portillo has declared his willingness to implement this recommendation.  The Inter-American Commission considers this an urgent measure, and looks forward to receiving information about the steps taken to move forward with this work.  As is clear from the constant jurisprudence of the system, a disappearance constitutes a grave violation of multiple rights, and any State responsibility that attaches continues to apply until the fate of the victim has been clarified, and there is full investigation, prosecution and punishment of the perpetrators, and reparation to the victim or the surviving family members.

D.          The Situation of Street Children

30.          One of the most serious situations brought to the Commission’s attention concerning children in Guatemala is that of street children.  Street children are forced by socio-economic circumstances to live in extremely precarious circumstances, marginalized from society at large, and deprived of the protections normally available to children.  It is estimated that over 5000 children live on the streets of Guatemala City, with smaller groups in a number of areas of the country.  Most are between 7 and 14 years of age, and come from the poorest areas of the capital.[48]

31.          The majority of the children who live on the streets are there because they have been abused or abandoned by family members.[49]  Reports suggest that the majority of the female street children suffered sexual abuse by a family member.[50]  Many of these children are forced to beg or steal to support themselves.  Some turn to prostitution or drug trafficking.  Many engage in different forms of substance abuse, including sniffing glue and abusing other drugs and alcohol.  Some recent reports indicate that these numbers may be on the rise, and that the severity of their aggressive behavior in response to their circumstance and substance abuse may also be increasing.

32.          Due to their special vulnerability, and the consistent reports it has received of serious violations against them, the Commission has been monitoring the situation of street children in Guatemala with special attention for a number of years.[51]  The Commission presented the case of Villagrán Morales et al., known as the “case of the street children” before the Inter-American Court of Human Rights to address the brutal murder of five street children in Guatemala City in 1990 at the hands of agents of the National Police.  The Commission is currently processing a series of individual cases concerning alleged violations against minors.  As noted in chapter II, in four of these cases (Juan Humberto Ramos and Cecilio Jax (case 11.554), Marcos Fidel Quisquinay Concua (12.199), Sergio Miguel Fuentes Chávez (11.554) and Juan José Méndez Toc (12.020)), the State acknowledged its responsibility for the facts alleged and compensated the families of the victims within the framework of the friendly settlement process provided for in Article 48 of the American Convention.

33.          While the Commission is pleased that the State is pursuing possibilities to ensure redress in these specific cases, it is deeply troubled by the absence of a comprehensive plan to deal with this problem that affects thousands of children.  While there are some nongovernmental and church organizations that provide important services for street children, the Commission is especially concerned by the lack of services aimed at getting children off the streets and back on a productive life path.  The Commission is informed that because vagrancy is a crime in Guatemala, and because there are no alternative services available, poor children may end up being placed in closed detention facilities simply for having no other place to go than the streets.  Nor, as noted above, are there sufficient protective services available to prevent minors from becoming street children.  In its response to the draft report, the State emphasized that, in 2000, the Secretariat of Social Welfare, with the support and coordination of COPREDEH, designed and was about to implement the Plan in Favor of Boys, Girls and Youths of the Street, in accordance with the commitments undertaken in the friendly settlement of cases before the Commission.  The Commission hopes to receive information on the measures adopted to finance and implement this Plan as soon as possible.

34.          Street children are extremely vulnerable to acts of abuse and violence by virtue of their circumstances.  It is important to note that, according to the information before the Commission, reports of gross violations against street children attributed to members of the security forces have declined in comparison with prior years.  The Commission continues, however, to receive reports of acts of intimidation and reprisal against street children, as well as illegal arrest and detention, and continues to find that these are not met with due investigation, prosecution or punishment.­­­­­­­  Moreover, while the figures reported by Casa Alianza for 1998 and 1999 represent a significant decline from previous years, the organization continued to report on allegations concerning the right to humane treatment, sexual violence, threats and acts of intimidation, and several cases of murder.[52]  Further, reports continue to allege the involvement of members of the National Civil Police in violations of the right to life, liberty and physical security of street children.[53]

35.          In 1996, the UN Committee on the Rights of the Child expressed deep concern with respect to the “persistence of violence against children …. particularly in view of the ineffectiveness of investigations into crimes committed against children which paves the way for widespread impunity.”[54]  There has been little improvement in the response of the judiciary in the interim.  As of 2000, Casa Alianza reported that of the 328 criminal processes it had pending before the courts of Guatemala, only 15 had progressed.[55]  Almost half of the cases the organization had pursued had been archived, and most of the rest remained in the initial investigation stage.[56]  This kind of impunity exacerbates and perpetuates the risk of such violations.  “Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of physical integrity.”[57] 

36.          In analyzing why most of the cases it pursued between 1994 and 1998 failed to progress, Casa Alianza indicated that over 30% of the time, files were lost by judicial personnel; 19% of the cases were impeded by negligence and inertia on the part of judicial personnel; 19% by a lack of sufficient proof; 8% by the lack of collaboration of the National Police in the investigation; 7% by influence trafficking; and 5% by virtue of the discrimination to which street children and related matters are subjected.[58]  During that period, of the 107 cases pursued, eight resulted in successful prosecution.[59]  The organization characterized that those cases were successful in part because they were widely reported and known to the public, and in part because there was constructive cooperation between the Public Prosecutor, National Police and the judges.  It consequently highlighted these cases as examples of the results that can be obtained, albeit pursuant to great effort.[60]

E.          The Sale and Trafficking of Children

37.          In part due to the prolonged armed conflict, which left so many orphans, adoption has become a major issue in Guatemala in recent years.  In and of itself, adoption offers the potential for a loving and durable solution to the situation of orphaned or abandoned children.  However, as the UN Special Rapporteur on the sale of children, child prostitution and child pornography concluded following her mission to Guatemala, what initially started out as efforts to find suitable solutions for these children was converted into a profitable business venture when it became evident that there was a substantial “market” for adoptable babies.[61]  She characterized the trafficking of babies and young children as existing on a large scale in Guatemala.[62]

          38.          “Ninety-five percent of the adoptions of Guatemalan babies are intercountry; it is reported that Guatemala is the fourth largest “exporter” of children in the world.”[63]  Reports indicate that over 1500 adoptions were approved in 1999.[64]  73 of these were national adoptions.  The rest were intercountry, with over 1000 approved for the United States.  While some of these adoptions are doubtless legal, the UN Special Rapporteur concluded that “legal adoption appears to be the exception rather than the rule.”  In the majority of cases, she indicated, such international adoptions – which can bring up to $US 15,000 -- give rise to a variety of criminal offenses, including the selling of babies, the falsification of documents and kidnapping.[65]  Over the last several years, there have been periodic reports of investigations into networks of baby traffickers.[66]  National adoption does not give rise to these problems.[67]

          39.          As have many other sources, the Special Rapporteur expressed particular concern with respect to the lack of an adequate legal framework to protect the rights of children.  She noted the situation with respect to the suspension of the entry into force of the Code of Childhood and Youth as a serious problem, particularly in view of the fact that Guatemala’s adoption laws are among the weakest in the region, and that trafficking of children is not even typified as a crime.[68]  She noted with indignation having received reports “that a stiffer penalty is imposed for the theft of a car than for the theft of a child.”  She linked the failure of progress in the entry into force of the Code on Childhood and Youth with the pendency of draft legislation on adoption -- which those involved in processing adoptions wanted to block.  Further, Guatemala has yet to become party to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. 

          40.          The Special Rapporteur defined the issue precisely in her report, noting that adoption itself is not problematic; rather, it is the sale of children that would be “inherently abhorrent,” by violating the rights of the child and by treating him or her as an object of commerce.[69]  This also often violates the rights of mothers, and sometimes fathers, who are tricked or coerced into giving up their babies against their will, but who for reasons of poverty and marginalization then have little means to seek recourse.  During its on-site visit, for example, the Commission received moving testimony from one mother who had been illegally tricked and then forced into giving up her baby against her will.  With the help of a nongovernmental organization, she was finally able to recover her baby, but only after great fear and an extended separation. 

          41.          Again, a central aspect of the problem is the lack of adequate legislation.  In this regard, the legislation on adoption has been characterized as severely deficient, and the procedures are far from transparent.[70]  Further, Guatemala has yet to adopt the necessary legislative and other measures to give full effect to its obligations under the Convention on the Rights of the Child, and the best interests of the child are not taken into account as a primary criterion in decision making.  The Convention on the Rights of the Child reflects in Article 9 the principle that the family unit should only be broken in exceptional circumstances, where necessary to safeguard the best interests of the child.  It requires in Article 21 that adoptions take place through legal procedures, with due attention to ensuring the informed consent of the parent(s).  Article 35 prohibits the sale or trafficking of babies, and Article 36 requires that the State protect children against exploitation harmful to their welfare.  These provisions are not adequately reflected in Guatemalan legislation, notwithstanding that the Committee on the Rights of the Child pointed out the insufficiency of the mechanisms to prevent and combat such trafficking in 1996, and notwithstanding the effort to introduce a law on adoptions for that purpose – an effort which has been stalled for the last several years. 

42.          Concerning this theme, in its response to the draft report the State indicated that it expected the National Plan against Child Prostitution and Exploitation to be completed and its execution initiated by April of 2001.  Further, the Presidency of the Republic would in the near future transmit to the Congress draft provisions concerning the ratification of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.  The Commission looks forward to receiving information on these and other measures aimed at protecting children at risk as soon as possible.

Conclusions and Recommendations

43.          The values of a society are profoundly reflected in the way it treats its children.  Within the regional human rights system, as within the universal system, the rights of children have been accorded special priority and protection, because the youth of our hemisphere represent our collective possibility to create "a system of personal liberty and social justice based on respect for the essential rights of man."  It is for this reason that Article 19 establishes special measures of protection for children corresponding to their vulnerability as minors, and the implementation of this obligation must be accorded special importance.

44.          The Commission shares the reiterated concern articulated by the national and international community that Guatemala has not implemented the legislative and other measures necessary to give effect to the fundamental rights of children under Article 19 of the American Convention and under the Convention on the Rights of the Child.  As noted above, respect for the rights of the child is a non-derogable obligation that may not be postponed. 

45.          The deficiencies in the legal framework -- especially its anachronistic dependence on the concept of the “irregular situation” in contravention of the principle of integral protection which underlies Guatemala’s international obligations – distorts the way that children are dealt with, both as victims and as transgressors.  One example of this is the criminalization of vagrancy, the result of which is the incarceration of children who are found on the streets because they have nowhere else to live.  While a few nongovernmental organizations offer specialized protective and rehabilitative services for street children, the State does not.  Consequently, during its visit to Los Gorriones, the Commission found 32 girls between the ages of 12 and 18, some of whom were detained as first-time offenders, some as multiple offenders, and some by order of a judge as a means of protection, usually from parental abuse.  These are situations that require different measures aimed at the needs and best interests of the child.

          46.          In accordance with the foregoing findings, the Commission recommends that the State:

1.       Adopt the necessary legislative and other steps necessary to give effect to its obligation to provide children with the special measures of protection required under Article 19 of the American Convention, as well as to its specific obligations under the Convention on the Rights of the Child.  In particular, the Commission recommends that the State take urgent action to modify the Code of Minors of 1979 through effectuating the entry into force, without further delay, of the new Code of Childhood and Youth.

2.       In conjunction with the strengthening of the legal framework, that it strengthen the capacity of the judiciary to respond to violations of the rights of children with prompt and effective investigation, prosecution and punishment, through additional training for personnel assigned to such cases and through the oversight necessary to ensure that the cases are processed and progress in accordance with the principles of due process.

3.       Establish a mechanisms for inter-institutional coordination among the mechanisms of the State directly responsible for implementing and enforcing the rights of the child and the nongovernmental organizations working in this sphere. 

4.       Allocate the human and material resources necessary to give priority to the basic needs and rights of children; in particular, that it develop additional means to provide social services aimed at ensuring access to nutrition, clothing and shelter sufficient for their proper development.

5.       Strengthen the regime of labor law to ensure that the illegal hiring of minors for work which is inconsistent with their age, health and development is met with effective, severe sanctions that are enforced.

6.       Strengthen the labor inspection regime in place to protect the rights of vulnerable workers such as children, and to enforce the prohibition of hazardous and abusive labor conditions.

7.       Redouble efforts to ensure that every child between the ages of 7 and 12 has access to at least 3 years of primary education; and to give further priority to the development of bilingual education in the appropriate geographic regions of the country.

8.       Take immediate steps to create a commission to establish the fate of children and adults who were disappeared during the conflict.

9.       Work with the nongovernmental sector to amplify the services available to deal with the psychosocial effects of the conflict and all its sequelae in children, families and communities.

10.     Develop the legal responses and services necessary to respond to the specific needs of children in situations of neglect and abuse, which are distinct from those of children at risk for reasons of delinquency.

11.     Amplify the responses that apply in the case of children at risk for reasons of delinquency so that the best interests of the child and the goals of rehabilitation and productive reincorporation into society are utilized as primary considerations in decision-making.

12.     With respect to adoption specifically, that it take the measures necessary to achieve the entry into force of an adequate legislative framework so as to ensure that the best interests of the child are a primary consideration in all decisions taken, to assure the free and informed consent of the parent or parents, and to guarantee legality, clarity and transparency in the applicable procedures.

13.     Give serious consideration to the ratification of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.

14.     Take further steps to promote awareness of and respect for the rights of the child among children, parents, teachers and, in particular, State officials with responsibility for designing and implementing policies that affect children and their families.