A.        Introduction[359]


328.          The Commission is deeply concerned over the current status of Guatemalan children.  By national statistics and UNICEF figures, more than half the Guatemalan population is under the age of 18.  Approximately 64% of Guatemalan children live in poverty.[360]  National statistics report that children under the age of five suffer the most dire poverty; in fact, 61.7% of them live in extreme poverty,[361] and 41% suffer from some degree of malnutrition. This adds up to 756,000 children.[362]  Moreover, fears are that in 2003, the food security problem could be even worse.[363]


329.          At 89 for every 100 thousand live births, infant mortality is alarmingly high.[364]  In 2000, illiteracy in Guatemala was at 32% and the average number of years of schooling was 4.5 years of formal education, although ethnic and gender-related factors made for enormous disparities between urban and rural areas.[365] School absenteeism is high among children; the grade repetition rate (12.8%) is symptomatic of problems in the educational system.  The school dropout rate is 7% in elementary school, the product of seasonal migration, child labor, children’s responsibilities in the home and the costs of going to school.[366] 


330.          With these statistics as the backdrop, this introduction will focus on the issues that are of special concern with regard to Guatemalan children and that will be examined at greater length throughout this chapter.  First, child labor continues to be a source of great concern to the Commission.  While the Guatemalan State has signed a number of international conventions for the protection of children, it has no adequate public policies to give effect to the international laws to which it has subscribed, and does not have the system of full protection necessitated by the special protection that boys and girls require


331.          Child adoption is another very disturbing issue for the Commission.  Guatemalan laws are not up to international standards.  Adoption is done through a for-profit network trafficking in boys and girls.  In 2002, there were 2,548 adoptions.  Guatemala has one of the highest rates of international adoption.


332.          The Commission must once again underscore its concern over the increasing numbers of children living in the street. The many violent assaults perpetrated against children who either live on the street or spend much of their day there have all the earmarks of a kind of “social cleansing” or purge and yet are never punished.


333.          Furthermore, with a flawed administration of justice and judges exercising considerable latitude and discretion, there are no guarantees that those guilty of violating children’s rights will be investigated, tried and punished. That kind of impunity makes children even more vulnerable to abuse.  Protective measures must be taken immediately, informed by the principle of full protection and geared to protecting the rights of those children who are thrust into the court system because of abandonment, abuse or delinquency.


334.          Estimates are that over half Guatemala’s population is under the age of 18.  According to the information received, most children belong to some indigenous community.[367]  Therefore, the situation of children in Guatemala, as described in this chapter, is particularly troubling in the case of children who are members of Guatemala’s indigenous peoples. As the information in the chapter of this report that concerns indigenous peoples reveals, the conditions in which indigenous children live and grow are so much worse:  these children live in poor households, in rural areas, and suffer great discrimination and social marginalization.


B.        Bringing domestic laws in line with international standards


335.          A number of international instruments protect the rights of the child and, taken together, provide a framework of laws that respect human rights. The States must legislate and implement their public policies to conform to these international standards.  This section describes this international framework and examines whether Guatemala’s domestic laws are consistent with the international standards that afford children special protection.


336.          Article VII[368] of the American Declaration and Article 19[369] of the American Convention both contain provisions related to the special protection to be accorded to children’s rights.  Articles 1 and 2 of the Convention must also be considered: the first provides for the obligation of the State to respect the rights and freedoms recognized in the Convention, while the second establishes the State’s obligation to adopt such legislative or other domestic provisions as may be necessary to give effect to the rights recognized in the Convention.  All such laws and provisions must be consistent with Article 29, which upholds the principle of law requiring application of the principle that is most favorable to the individual.  Also, because of the child’s particular vulnerability, the State’s obligation to offer the child the special protection required by his condition as a minor is one of those rights that cannot be suspended under any circumstance.  The American Convention also includes express provisions for protection of the child’s specific rights, such as Article 4 on the right to life, Article 5 on the right to humane treatment, Article 17 on the right to protection of the family, and Article 18 on the right to a name.  Advisory Opinion OC-17 of the Inter-American Court of Human Rights analyzes how the State is to implement these and other standards.[370]


337.          The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador,” signed in November 1988 and to which Guatemala has been party since October 2000, provides for the rights of the child in its Article 16, the need for just, equitable and satisfactory working conditions in Article 7, the right to food in Article 12 and the right to an education in Article 13.


338.          Guatemala ratified the Convention on the Rights of the Child (CRC) on June 6, 1990.  Article 2(1) of the CRC[371] provides that the Parties undertake to ensure the rights recognized therein to every child within their jurisdiction, without distinction.  Article 3[372] articulates the universal principle of the best interests of the child, which is to crosscut every State Party’s public policies for the protection of children.  The Commission was informed that Guatemala ratified the Optional Protocols to the CRC on May 9, 2003.


339.          The CRC represents an important shift away from the paradigm of “irregular situation” in favor of the principle of “full protection.” This is a move away from the concept of children as objects of protection and repression, to regard them instead as full subjects at law.[373] The CRC establishes two realms of protection: a) protection of the rights of children in general; and b) protection of the rights of children who have committed a crime.  Children who fall into the latter category must be assured not only the same rights and guarantees that adults enjoy, but special protection as well.  It is the obligation of the State, including the Judiciary, to apply the international treaties on this subject.


340.          Guatemala is also a State Party to a number of ILO Conventions, such as Convention No. 138,[374] defining the minimum ages for basic categories of employment, and Convention No. 182 for the Elimination of the Worst Forms of Child Labour.  Guatemala ratified the second of these on October 11, 2001.


341.          In drafting its domestic laws, Guatemala must consider the United Nations Standard Minimum Rules for the Administration of Juvenile Justice–the Beijing Rules- adopted on November 28, 1985; the United Nations Directives for the Prevention of Juvenile Delinquency–the Riad Directives-, adopted on December 14, 1990; and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted on December 14, 1990.


342.          Articles 1 and 2 of the Guatemalan Constitution provide that the State is organized to protect the individual and the family and shall guarantee the rights to life, liberty, justice, security, peace and the integral development of the individual.  In the area of criminal law, Article 20 provides that minors who violate the law are unindictable, and their treatment is to be geared toward a well-rounded education suitable for a child or juvenile.  Such children are to be cared for in specialized institutions, by specialized personnel, and shall not be incarcerated in adult facilities.  Title II, Chapter II, establishes measures of protection for the family.  Article 47 provides for the social, economic and legal protection of the family.  Article 50 stipulates that all children are equal before the law, while Article 51 provides that the State shall safeguard children’s “physical, mental and moral health.” The fourth section of this chapter establishes the right to education and specifically provides that elementary education is compulsory and gratis.  In regard to work, Article 102(l) stipulates that “children under age 14 may not engage in any form of labor, save for the exceptions allowed by law.  Minors shall not be required to perform work unsuited to their physical condition or that puts their moral formation into peril.”


343.          Despite its ratification of the aforementioned international conventions and the provisions of its Constitution, for a long time Guatemala did not have a proper framework of domestic laws to protect the rights of children. The laws regarding children were for many years based on the 1979 Minors Code, which defined children as “minors,” the latter being anyone under the age of 18.[375]  Inasmuch as that Code was based on the “irregular situation” principle, it was at odds with the CRC and the Constitution, which gives international human rights treaties preeminence over domestic laws.


344.          By Decree 78-96, dated September 11, 1996, the National Congress approved a new text, called the Child and Juvenile Code.  Article 287 of the new text provided that it would enter into force one year after the date of its publication.  However, this Code did not take effect in the prescribed manner.[376]  On March 24, 1999, Congress issued a provision in order to continue to hear from the interested sectors and arrive at a consensus-based child and juvenile code.  The Commission has been told that in order to give the various groups that had expressed disagreement with the new version of the Code an opportunity to share their views, a Congressional Committee was formed by Decree 12-99 to allow follow-up on the Child and Juvenile Code.   By virtue of that decree, institutions like the Social Movement for the Rights of Guatemalan Children and Youth, the Guatemalan Conference of Bishops, the Office of the Defender for Children and Youth of the Office of the Human Rights Ombudsman, the Latin American Council of Churches and the Evangelical Alliance of Guatemala presented a new version of the Code reflecting the consensuses that had been built.  The Commission of Women, Minors and the Family reached a consensus with the sectors of civil society that participated in the discussion, which had presented a final document.  The IACHR observed with interest as the “Consensus Code” was presented on October 24, 2002.


345.          Following an important, multi-year drive spearheaded by civil society, on June 4, 2003, Guatemala approved the Law for Full Protection of Children and Adolescents, Decree 27-03, registered as number 2767.  It is more effective at protecting children’s rights than the law previously in force.  In its observations on this report, the State reported that, subsequent to approval of that law, government ministries and departments have developed workshops to standardize application criteria for preparing the regulations to that legislation.  The Commission looks forward to receiving information on concrete improvements in the situation of Guatemalan children.


346.          In its observations on the Fifth Report on the Situation of Human Rights in Guatemala, the State noted that in public policy, child and adolescent committees were about to be created within Development Councils operating at the municipal, departmental and regional levels.[377] During its visit, the Commission received no updated information about the workings of these committees or any other initiatives aimed at creating a system that fully protects the rights of the child.  The Commission once again reminds the State that its services and programs addressing the basic needs of children and adolescents must continue to function properly.

C.        Child labor


347.          Poverty and marginalization have forced many families to put their children to work.  As a result, they have come to regard child labor as something normal and the rest of society seems to view it in much the same way.[378]


348.          The Commission observes that the Convention on the Rights of the Child does not establish a minimum working age.  Instead, it simply requires that States set the minimum age in their domestic laws.  However, the international community leans in favor of abolishing child labor altogether for anyone under the age of 12.[379]  For example, ILO Convention 138, which Guatemala ratified on April 27, 1990, provides that the minimum working age under the countries’ domestic law shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.[380]  The Convention makes allowance for certain exceptions to this rule, but bars children under the age of 12 from the workforce.


349.          In Guatemala, participation in the labor market largely depends on one’s gender and level of education.  The labor force is made up of 4 million people, with another half million children between the ages of 7 and 14 employed.  There are virtually no social or legal controls over child labor.  Most working children are indigenous, live in rural areas and receive little or no pay for their labors.[381]  One third works mainly on coffee and sugar plantations.  Some 75% come from low-income households, and 80% live in rural areas.  Boys work in agriculture and girls in agriculture and commerce.  They are paid less than adults, but work 30-hour weeks, which virtually precludes any possibility of attending school.[382] The National Living Standards Survey (ENCOVI-2000) provides data on girls in the workforce, under the heading of “household work”.  Some 20.8% are part of the economically active population (EAP).  Most girls between the ages of 7 and 14 who are part of the labor force are in agriculture (43.7%), the manufacturing industry (21.7%), and health, social and personal services.  Most boys in the labor force between the ages of 14 and 18 are in commerce (33.7%), agriculture (22.7%) and services (21.6%), followed closely by industry (20.9%).  Some 80.3% of working girls and 49% of girls between the ages of 14 and 18 who work in agriculture were unpaid family workers.[383]


350.          Some 11.4% of the girls work as “domestics.” Work in the domestic sector is largely in urban areas and has existed for so long in Guatemala that it is part of the culture.  Most workers in this sector are of indigenous origins (65%), and have been sent by their parents as a survival strategy.  These young girls work a 14-hour day, are underpaid -less than the minimum wage- and receive no job benefits, social security or medical care from their employers. In general, the working conditions carry a high psychological and social risk.[384]


351.          By Decrees 13 and 18, of 2001, Congress endowed the Ministry of Labor and Social Security with authorities to penalize alleged violations of the labor laws.  The IACHR received reports to the effect that in 2002, a total of 4,000 fines were levied and Q 545,000 in fines were collected by the Administrative Penalties Section of the Office of the Inspector General of Labor.[385]  The Commission was also informed that, in compliance with ILO Convention No. 182, ratified by Guatemala by Government Agreement 347-2002, a National Commission for the Eradication of Child Labor was formed.  Installed on November 29, 2002, various governmental and nongovernmental sectors and international organizations were instrumental in the Commission’s creation. 


352.          The State of Guatemala informed the IACHR that it had undertaken the commitment to the problem of child labor in 1990, when it ratified the Convention on the Rights of the Child and ILO Convention 138 concerning the Minimum Age for Admission to Employment, and in 1996 when it signed the Memorandum of Understanding with the ILO to conduct a National Plan for the Elimination of Child Labour and to execute the International Programme for the Elimination of Child Labour.  In 1999, the Ministry of Labor and Social Security conducted a three-party consultation that came up with the so-called “National Plan for the Prevention and Elimination of Child Labor and Protection of Working Adolescents.”[386]  In its observations on this report, the State indicated that as a result of activities under the National Plan for the Eradication of Child Labor, with the support of the ILO, it succeeded during 2003 in rescuing children from work in broccoli and coffee plantations, gravel pits, and fireworks factories in the departments of Retalhuleu, San Marcos and San Juan, and had placed them in school with special funding, as well as the provision of school breakfasts and lunches to encourage them to remain in school.  The Commission has no information on the number of children who have benefited from this program.


353.          Concerning protective labor legislation and in compliance with Chapter II–social development-of the Agreement on Socioeconomics and the Agrarian Situation, Ministerial Decision 182-2000, of May 4, 2000, has decentralized and increased the labor inspection services.  This agreement contains the Regulations for Administrative Decentralization of the Ministry of Labor and Social Security in order to strengthen the inspection capability in furtherance of domestic law and the international labor treaties ratified by Guatemala.  The Labor Ministry’s Social Prevention unit has been ordered to create a National Network to tackle the problem of children performing dangerous jobs.  The Commission nevertheless observes that neither the domestic laws nor the international conventions are being observed within the country.


354.          Child labor is the principal cause of school absenteeism and drop out.  Working children between the ages of 10 and 14 complete an average of 1.78 years of school, which is half the number of years that non-working children complete.[387] The Commission is very troubled by the failure to comply with international rules on minimum age for admission to the basic categories of employment and by the conditions that working children in Guatemala endure.  The growth, development and education of children have to be a priority if social peace is to reign and a democratic society is to flourish.  The Commission learned that the State had put together an educational program for working children–PENNAT-to provide children in urban and rural areas with tutoring in the marketplaces, parks and streets of Guatemala.  However, it has no information about any progress this initiative may have made.  Despite the State’s initiatives, enormous efforts are still needed to correct this situation.  The minimum standards in health, education and labor must be assured.


D.        Adoptions and registration of births


355.          Child adoption in Guatemala is a matter of particular concern to the Commission, given that Guatemala does not have a proper framework of adoption laws.  As a result, adoptions are done without taking the best interests of the child into account and without the involvement of the competent authorities.  This has set the stage for trafficking in children, which has by now become a very profitable business; the special protection that children, by their condition, need from the State is lost as a result.


356.          Guatemala has one of the highest rates of international adoption in the world.  Statistics show that it ranks fourth on the list in terms of the absolute number of children adopted or up for adoption; were such adoptions calculated as a percentage of the population, Guatemala would certainly top the list.[388]  Of the 2,548 adoptions in 2002, 97.9% were international; of these, 85% went to the United States.[389]  Most children put up for adoption are under 18 months old.  Some 82% live in private households known colloquially as “casas cunas” [cradle houses] or “casas de engorde” [fattening houses].[390]  In his 2002 Detailed Report, the Human Rights Ombudsman wrote that “Guatemalan children are even advertised on-line, at prices ranging between $15 thousand and $25 thousand, travel expenses not included.” It has been written that “Trafficking of children in Guatemala refers to the excessive number of children who leave Guatemala through international adoption, without efficient control, transparency, regulation over prices, and a clear knowledge of the child’s origin.”[391]


357.          The Latin American Institute for Education and Communication, ILPEC, did a study on Guatemala and found that


Presently, there exists a sector of middlemen or "jaladoras" who act as intermediaries in the trafficking of children, actively seeking out pregnant women in the markets, parks, buses, or among groups of street girls, and offering them sums of up to Q 5,000.00 for their future baby.  They propose the caretakers for the children and contract the notaries and agents necessary for completing the legal documentation. It is estimated that the notaries and agents provide their written witness for the sum of US$ 2,000, which includes being present in the Migration Office where the child’s passport is issued and in the Embassy so as to deliver the documents required to obtain the visa.  In addition, some attorneys “go hunting” in towns within the interior of the country, seeking out young women of scarce resources who are experiencing grim economic situations.  The deal is simple with respect to those women who want “easy money” or to those who due to their extreme poverty become pressured to hand over their own children for economic relief.[392]


358.          In the law, adoption appears in Article 54 of the 1985 Constitution, under Title I, on Human Rights.[393]  Articles 228 to 251 of the 1963 Civil Code regulate the adoption process.  In 1997 a law was enacted regulating notarization of voluntary affairs, which amends the procedure to process and legalize adoptions by allowing the procedure to be handled by an attorney or notary.   A family-court judge need not intervene when adoption is handled by this means.  Indeed, only 2% of adoptions were done through the courts; the other 98% were handled by notaries or lawyers.[394]  Extrajudicial adoptions are done without proper State control, contrary to the principle of the full protection of children.


359.          With no State controls and given the high prices being paid for adoptees, adoption-rather than being a good solution for orphaned or abandoned children-is becoming a business controlled by networks that traffic in children.[395]  Given the weakness and failings of the administration of justice in Guatemala, as described in chapter I of this report, these networks currently function with complete impunity in the country and, according to information the Commission received during its visit, may even operate with the involvement and/or acquiescence of the State.


360.          Another adoption-related problem that the Commission observed is that many children’s births–especially girls in rural areas and among the urban poor-are not registered with the vital records offices.[396]  The reasons vary:  the distance that must be traveled to get to a vital records office; the fact that many mothers are themselves unregistered; and even that parents do not understand the importance of registering their children’s births. While registration itself is not an absolute guarantee of anything, it does give the child a name and nationality, which can be helpful in efforts to combat various forms of child exploitation, such as illegal adoptions, forced recruitment, and as a protective measure in the juvenile criminal justice system.  The Commission recommends that the State make efforts to make the population aware of the importance of registering a birth and to improve the registration system to make it accessible to everyone, especially people in rural areas.


361.          The Commission applauds the fact that on November 26, 2002, Guatemala became party to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.[397]  The IACHR also learned of legislative proposals to solve the adoption problem described here. Still, however, those measures have not been put into practice and fall short of what is needed.  The State is still not fulfilling its adoption-related obligations under the American Convention and the Convention on the Rights of the Child.


362.          The Commission urges Congress to approve the reforms needed to bring Guatemala’s domestic laws and practices in line with international human rights standards, so that all Guatemalan children are able to exercise their rights to the fullest.  While the adoption law is being amended, the Commission is urging the State to take short-term measures that are consistent with the Hague Convention.  One measure needed to discourage the trafficking in children for adoption purposes is an investigation by the State into the possible existence of networks engaged in unlawful adoptions and punishment of the guilty parties.


363.          The IACHR is endorsing the recommendation that the United Nations Committee on the Rights of the Child made to the Guatemalan State to the effect that it should suspend adoptions until proper legislative and institutional measures are taken to prevent the sale and trafficking of children and until an adoption practice that fully comports with the principles and provisions of the Convention is adopted.[398]


E.         The street children


364.          The Commission constantly monitors the situation of street children in the hemisphere because they are a high risk sector.  A number of international and national institutions provide assistance to this very vulnerable sector, but their work cannot keep pace with the increasing numbers of children who end up living on the street.  In Guatemala City, street children can be found downtown, in other urban districts and municipalities, and in the country’s interior.  New groups are constantly cropping up.  The situation is a complex one, requiring immediate State measures.  The street children themselves have to be involved in these measures by asking them what they think and what their needs are.


365.          During its visit, the Commission met with a number of State and private institutions that provided it with invaluable materials on the subject.[399]  The statistics on this subject vary. Estimates on the number of street children range anywhere from 3000 to 9994.[400]   According to the Social Work Secretariat of the Office of the Presidency, some 26% of these are under the age of 13, and 64% are between 13 and 18.[401]


366.          In the meetings held during the Commission’s on-site visit, many organizations stressed the serious violations being committed against many of these children’s basic rights.  They are harassed and persecuted by members of the State security forces and the private security forces, who never face the punishments that the crimes they commit demand.[402]


367.          Another matter of central concern to the Commission are the systematic extrajudicial executions committed against children who live in the street, killings that have sometimes been described as “social cleansing.” The Casa Alianza Association found that in 2002 the murder rate among victims under the age of 23 was 30% higher than in 2001.  In all, there were 465 such cases.[403]  The same organization told the Commission that a total of 373 children and youth under the age of 23 were killed in Guatemala City in the first six months of 2003.  The Commission also received information to the effect that in January 2003, 37 young people were murdered in Villanueva.[404]   The rampant impunity in Guatemala means that for now, the perpetrators are not being punished, which would be contrary to the State’s obligation to investigate crimes and punish the guilty parties.


368.          Members of youth gangs have also become routine victims of the violence that clandestine groups unleash against them.  A specific project by the Center for Legal Action in Human Rights, devoted to the “rehabilitation and education of gang members,” has reported the murder of 19 youths its projects were assisting.  While violence against gang members has become commonplace, in recent months the police operations have focused on young people who have been rehabilitated or who were in the process of being rehabilitated and mainstreamed back into society.[405]


369.          A number of cases have been lodged with the inter-American system for the protection of human rights as a result of the failure to take adequate measures to prevent and respond to the violations that Guatemalan children are suffering.  The Commission filed the “Street Children” case with the Inter-American Court of Human Rights, which ordered, inter alia, that the State take the necessary measures to ensure that its laws are in compliance with its obligations.  The Court held that:


In the light of Article 19 of the American Convention, the Court wishes to record the particular gravity of the fact that a State Party to this Convention can be charged with having applied or tolerated a systematic practice of violence against at-risk children in its territory.  When States violate the rights of at-risk children, such as “street children”, in this way, it makes them victims of a double aggression.  First, such States do not prevent them from living in misery, thus depriving them of the minimum conditions for a dignified life and preventing them from the “full and harmonious development of their personality”[406], even though every child has the right to harbor a project of life that should be tended and encouraged by the public authorities so that it may develop this project for its personal benefit and that of the society to which it belongs.  Second, they violate their physical, mental and moral integrity and even their lives.[407]


370.          The Commission is currently processing five individual cases in which violations committed against children are alleged, and in which the State has admitted its responsibility for the facts alleged. A friendly settlement of these five cases is currently being worked out, pursuant to Article 48 of the American Convention.


371.          The Commission is very disturbed by the situation of the children living in the street.  The State must fully implement the Plan of Action for Street Children and Youth, put together by the Secretariat for Social Welfare, the Forum for the Protection of Street Children and Youth and COPREDEH, and published in 2001.  Preventive measures must be put into practice to guarantee observance of these children’s rights and their normal growth and development.  Measures must also be taken to effectively punish those who violate these children’s basic rights. 


372.          The IACHR also notes that minors come into the judicial system by one of two doors:  first, because they violated the law; and second, because they need the protection of the courts because their rights are in peril.  Some street children use drugs and commit crimes like robbery, often in order to stay alive, unfortunately, however, the usual response is internment.[408]  On this point, in its observations on this report, the State reported that the Department of Social Welfare in the Office of the Presidency is responsible for the care and social adjustment of children in conflict with the criminal law, and to this end it operates a series of “Gaviota” (Seagull) centers for first-time offenders and those in Stages I and II in the Municipality of San Jose de Pinula for boys, and “Gorriónes” (Sparrows) centers for girls of 12 years and over.


373.          Under the aforementioned “irregular situation” paradigm, there is no obligation to provide minors with legal counsel during judicial proceedings, and indigenous children with the services of an interpreter.  The Commission received information about street children spending long periods in pre-trial detention.[409] The State must also take into account the standards set in Advisory Opinion OC-17 of the Inter-American Court of Human Rights, mentioned earlier, apropos the observance of the proper judicial guarantees in cases involving children.


374.          In its observations, the State reported that in some cases judges decide to send youngsters who have broken criminal laws to a private home, in the expectation that they can reform their conduct within a short time.  The State also noted that, over the last 18 months, there has been a program of "assisted liberty" in place, whereby a Juvenile Court Judge can impose an alternative to imprisonment on an adolescent who has broken the law.  Currently, 166 young people are working in private firms affiliated with the program.  The purpose of this alternative is to provide social and educational assistance to adolescents within their own environment, under the assistance and supervision of specialized personnel, in order to help avoid their falling behind in school and to oversee the performance of those who are continuing their studies while this measure is in effect.  According to information provided by the Government, this program is operating actively in the Department of Guatemala and in several departments of the interior.


375.          So long as the law instituting a special system of accountability for youth offenders is not enforced, the children who enter this special system for minors will continue to be denied the full observance of the substantive and procedural rights and guarantees to which everyone is entitled under the American Convention, the Convention on the Rights of the Child and the Constitution of the Republic.


F.         Children disappeared during the internal armed conflict


376.          The peace process will take hold in Guatemala when, in the spirit of justice and truth, Guatemalan society internalizes and learns from the causes, impact and consequences of the internal armed conflict. An as yet unresolved issue in Guatemala is the question of the children whose human rights were violated during the armed conflict.


377.          The report of the Historical Clarification Commission and the Catholic Church’s Recovery of Historic Memory Report (REMHI) contain an extensive collection of testimonies about human rights violations committed during the armed conflict, including the forced disappearance of children.  The report of the Historical Clarification Commission points out that one out of every five victims during the armed conflict was a minor.  Of the total number of victims on record, 6,159 were the victims of forced disappearance.  Of these, 11% were cases of disappeared children.  Furthermore, 60% of the total number of deaths caused by forced displacement were children.[410] The report titled “Hasta Encontrarte” [Until I Find You] describes a number of the disappeared children and says that some are the children or relatives of civilian non-combatants, part of internally displaced communities or communities of peoples in resistance; others are children or relatives of leaders of social and religious groups and groups sympathetic to the insurgent groups.[411] In the report “Guatemala Memory of Silence”, the Historical Clarification Commission suggests that the government needs to take immediate steps to find the disappeared children.  It suggests, as a first step, that the government create a national commission to find disappeared children, children who were illegally adopted or were illegally separated from their families, and to document their disappearance.


378.          The Commission received information concerning the formation of the National Commission to Locate Disappeared Children (CNBND).  Serving on the Commission is the Human Rights Ombudsman.  The CNBND has told the IACHR that close to five thousand chldren were disappeared, separated from their families and/or offered for adoption.[412]  The CNBND has documented close to a thousand cases and has solved nearly 120 cases (10%).  It still has another 900 cases (90%) to solve. There are a number of reasons why it is so difficult to locate these children.  Access to records at military bases, in orphanages, shelters and the like, and adoption records is being denied.  The government does not appear to be anxious for the forced disappearance cases to come to light.  The legal framework necessary to document, search for and find disappeared children is not there, nor are the financial and technological resources that are needed to locate documents and search for and find disappeared children.  The IACHR is calling upon the State to adopt proper laws to facilitate the search for the children disappeared during the internal armed conflict, and to harness the technical and scientific resources needed to accomplish that goal, including DNA testing.


379.          As for internally displaced children, the IACHR has no knowledge about the efforts that the State is making to resettle uprooted populations to ensure their protection.  The State asserted that the Mental Health group operating within the Ministry of Public Health is conducting programs to carry out community actions with the affected population to provide psychosocial rehabilitation, but the Commission was told nothing about these programs during its visit.


380.          The IACHR applauds the nongovernmental initiatives that have solved cases of children disappeared during the conflict. The Commission encourages partnerships between the State and private institutions involved in this issue.


381.          The forced disappearance of persons violates the victims’ fundamental rights by denying them their legal standing before the law, and thus stripping them of the protection of the law.  When the victims are children, the violation becomes all the more egregious.  Children, who are innocent in respect of the causes of and reasons for their disappearance, are forced to endure terrible trauma that affects their personal growth and development.  The Commission urges the State to comply with its obligations under international treaties and the commitments undertaken in the Peace Agreements, to investigate human rights violations committed during the armed conflict, punish the guilty, and compensate the victims.


G.        Conclusions and recommendations


382.          The status of children in Guatemala is particularly troubling for the Commission.  Children have rights that must be fully respected and protected in a special way.  But conditions in the areas of health and education and the minimum working conditions do not assure the essentials needed to live life fully day by day, and for future generations to grow and develop.  The special and full protection of children is also essential because it is they who will make democracy and the rule of law a permanent fixture of Guatemala’s future.


383.          Long in the making, a body of domestic law was recently approved that is more in line with the international standards for the protection of children’s rights and provides full and special protection of children’s rights as they grow.  This special protection is vital because children are such a highly vulnerable social group.  This body of laws has not yet been effectively implemented and hence is still a challenge for the country, as evidenced by the failure to compensate children who were victims of the armed conflict, the difficulties that children encounter in the system for the administration of justice, the predicament of indigenous children, the conditions under which adoptions are transacted in Guatemala, and the abuses that street children suffer.


384.          Based on the above analysis and conclusions, the Commission is recommending to the Guatemalan State that it:


1.                 Adopt legislative or other measures needed to fulfill its obligation to provide children with the means of protection contemplated in Article 19 of the American Convention, and its obligations under the Convention on the Rights of the Child.


2.                 Strengthen the judicial branch capacity to take immediate action in response to violations of children’s rights.  Train personnel assigned to cases involving children so as to ensure prompt action and the principle of due process.


3.                 Establish mechanisms of inter-institutional coordination among the State institutions directly responsible for implementing and enforcing children’s rights and between the State institutions and the nongovernmental organizations that work in this area.


4.                 Assign the human and material resources necessary to make children’s needs and rights a priority, and calculated to guarantee nutrition, health and education for their proper growth and development.


5.                 Take the steps needed to draw society’s attention to the question of child labor.  Also, strengthen the labor code to ensure that sanctions are enforced when children are illegally hired to perform work unsuited to their age, health and development.  Also, enhance the labor laws to protect girls who work in the live-in domestic work sector.


6.                 Redouble its efforts to ensure that every child has access to a free elementary education.  Make bilingual education a priority in the corresponding geographic regions, thereby preserving their multicultural heritage.


7.                 Battle impunity and provide the means necessary so that the Public Prosecutor’s Office can identify those responsible for the violent deaths of the street children and make certain that these persons are prosecuted and punished by the Judicial Branch.  To that end, an intersectoral commission could be formed to suggest concrete proposals.


8.                 Strengthen the legal responses and available services needed to address the specific needs of abandoned and neglected children who live on the street and are therefore particularly vulnerable.


9.                 Adopt the adoption laws needed to properly protect children’s rights, thereby preventing the sale and trafficking of children.  Promote greater public awareness of the importance of registering children’s births, which is helpful in combating various forms of child exploitation.


10.             Support the National Commission to Find Children Disappeared during the Armed Conflict, adopt the proper legislation to enable it to discharge is mission, and provide the technical and scientific means needed to document and find children who were disappeared, illegally adopted or unlawfully separated from their families.


11.             Establish the mechanisms needed to carry out the program to Assist Resettlement of Uprooted Populations and ensure that internally displaced children are protected. 



[359] For purposes of this chapter and in keeping with the Convention on the Rights of the Child, the term “child” refers to anyone under the age of 18, unless the applicable domestic law provides otherwise.

[360] Report 24221-GU Guatemala Poverty in Guatemala, World Bank,
February 20, 2003, p. 10.

[361] ENCOVI, Tasas de pobreza total por grupo de edad [Total poverty rates by age group],

[362] Report 24221-GU Guatemala Poverty in Guatemala, World Bank,
February 20, 2003, p. 11.

[363] Informe Anual Circunstanciado [Detailed Annual Report] 2002, Dr. Sergio Fernando Morales Alvarado, Procurador de los Derechos Humanos [Human Rights Ombudsman], Procuraduría de los Derechos Humanos [Office of the Human Rights Ombudsman], 2002, p 44.

[364] Informe Anual Circunstanciado [Detailed Annual Report] 2002, Dr. Sergio Fernando Morales Alvarado, Procurador de los Derechos Humanos [Human Rights Ombudsman], Procuraduría de los Derechos Humanos [Office of the Human Rights Ombudsman], 2002, p. 654.

[365] United Nations Development Programme (UNDP), National Human Development Report, Guatemala:  Human Development, Women and Health, 2002, p. XIII (Spanish only).

[366] See Report 24221-GU Guatemala Poverty in Guatemala, World Bank, February 20, 2003, Chapter 7: Education and Poverty.

[367] See Report 24221-GU Guatemala Poverty in Guatemala, World Bank,
February 20, 2003, Chapter 7: Education and Poverty.

[368] Article VII provides that all women, during pregnancy and nursing, and all children have the right to special protection, care and aid.

[369] Article 19 of the American Convention reads as follows: “Every 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.”

[370] The Court wrote the following: “1.  That pursuant to contemporary provisions set forth in International Human Rights Law, including Article 19 of the American Convention on Human Rights, children are subjects entitled to rights, not only objects of protection. 2.  That the phrase “best interests of the child”, set forth in Article 3 of the Convention on the Rights of the Child, entails that children’s development and full enjoyment of their rights must be considered the guiding principles to establish and apply provisions pertaining to all aspects of children’s lives.  3.  That the principle of equality reflected in Article 24 of the American Convention on Human Rights does not impede adopting specific regulations and measures regarding children, who require different treatment due to their special conditions.  This treatment should be geared toward protection of children’s rights and interests.  4.  That the family is the primary context for children’s development and exercise of their rights.  Therefore, the State must support and strengthen the family through the various measures it requires to best fulfill its natural function in this field.  5.  That children’s remaining within their household should be maintained and fostered, unless there are decisive reasons to separate them from their families, based on their best interests. Separation should be exceptional and, preferably, temporary.  6.  That to care for children, the State must resort to institutions with adequate staff, appropriate facilities, suitable means, and proven experience in such tasks.  7.  That respect for life, regarding children, encompasses not only prohibitions, including that of arbitrarily depriving a person of this right, as set forth in Article 4 of the American Convention on Human Rights, but also the obligation to adopt the measures required for children’s existence to develop under decent conditions.   8.  That true and full protection of children entails their broad enjoyment of all their rights, including their economic, social, and cultural rights, embodied in various international instruments.  The States Parties to international human rights treaties have the obligation to take positive steps to ensure protection of all rights of children.  9.  That the States Party to the American Convention have the duty, pursuant to Articles 19 and 17, in combination with Article 1(1) of that Convention, to take positive steps to ensure protection of children against mistreatment, whether in their relations with public officials, or in relations among individuals or with non-State entities.   10.  That in judicial or administrative procedures where decisions are adopted on the rights of children, the principles and rules of due legal process must be respected.  This includes rules regarding competent, independent, and impartial courts previously established by law, courts of review, presumption of innocence, the presence of both parties to an action, the right to a hearing and to defense, taking into account the particularities derived from the specific situation of children and those that are reasonably projected, among other matters, on personal intervention in said proceedings and protective measures indispensable during such proceedings.  11.  That children under 18 to whom criminal conduct is imputed must be subject to different courts than those for adults.  Characteristics of State intervention in the case of minors who are offenders must be reflected in the composition and functioning of these courts, as well as in the nature of the measures they can adopt. 
12.  That behavior giving rise to State intervention in the cases to which the previous paragraph refers must be described in criminal law.  Other cases, such as abandonment, destitution, risk or disease, must be dealt with in a different manner from procedures applicable to those who commit criminal offenses.  Nevertheless, principles and provisions pertaining to due legal process must also be respected in such cases, both regarding minors and with respect to those who have rights in connection with them, derived from family statute, also taking into account the specific conditions of the children.  13.  That it is possible to resort to alternative paths to solve controversies regarding children, but it is necessary to regulate application of such alternative measures in an especially careful manner to ensure that they do not alter or diminish their rights.”  Inter-American Court of Human Rights, Advisory Opinion OC-17/2002, Legal Status and Human Rights of the Child, August 28, 2002.

[371] Article 2 provides that:

1.         States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

[372] Article 3 provides, inter alia, that:

1.         In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration..

[373] Mary Ana Beloff, “La Aplicación Directa de la Convención Internacional sobre Derechos el Niño en el ámbito interno” [Direct application of the International Convention on the Rights of the Child at the Internal Level], in AAVV. La aplicación de los Tratados de Derechos Humanos por los Tribunales Locales [The Enforcement of Human Rights Treaties by Local Courts]. Editorial del Puerto, Buenos Aires, 1998.

[374] Guatemala ratified ILO Convention 138 on April 27, 1990.

[375] See Guatemalan Civil Code, Article 8 (which states that the age of majority is 18); see also the United Nations Convention on the Rights of the Child, Article 1 (which defines a child as anyone under the age of 18).

[376] Subsequently, the Congress issued Decree 84-97, which amended Article 287 of the Code and postponed its entry into force until March 27, 1998.  Then Decree 23-98 again suspended enforcement of the legal provisions contained in the new Code, this time until September 27, 1998.  A third decree, 54-98, suspended the new Code’s entry into force until March 1, 2000.  Then the Guatemalan Congress passed Decree 4-2000, which indefinitely suspended the legal provisions contained in the Child and Juvenile Code.  The decree, however, did not comply with the provisions of Article 180 of the Constitution,[376] as it did not specify how long the Code’s entry into force was to be delayed, thereby generating a vacatio legis. The Guatemalan Court of Constitutional Law took cognizance of this matter in case 1351-2000, and on February 14, 2002, declared Article 1 of Congressional Decree 4-2000 to be unconstitutional.  It ordered Congress to comply with Article 180 of the Constitution and determine how long Decree 4-2000 would remain in effect.

[377] Follow-up Report on the State of Guatemala’s Compliance with the Recommendations made by the IACHR in its Fifth Report on the Situation of Human Rights in Guatemala (2001), published in the IACHR’s Annual Report 2002, OEA/Ser.L/V/II.117,
Doc. 1 rev. 1,  March 7, 2003.

[378] Report Guatemala Child Labour in the Garbage Dumps:  A Rapid Assessment, ILO, Geneva, May 2002.

[379] Bjorn Pettersson, UNICEF, Regional Office for Latin America and the Caribbean, State Policies for the Protection of Children in Latin America, in Minors under Protection, Seminar, Memorias, Ciudad Don Bosco, 1996, at 16.

[380] See Article 2(3).

[381] Report 24221-GU Guatemala Poverty in Guatemala, World Bank,
February 20, 2003, p. 50.

[382] Report 24221-GU Guatemala Poverty in Guatemala, World Bank,
February 20, 2003, p. 50.

[383] National Human Development Report, United Nations Development Programme (UNDP), 2002, p. 195 (Spanish only).

[384] National Human Development Report, United Nations Development Programme (UNDP), 2002, (Spanish only).

[385] See the Follow-up Report on the State of Guatemala’s Compliance with the Recommendations made by the IACHR in its Fifth Report on the Situation of Human Rights in Guatemala (2001), published in the IACHR’s Annual Report 2002, OEA/Ser.L/V/II.117,
Doc. 1 rev. 1,  March 7, 2003.

[386] This plan focuses on six themes:  education, health, promotion of adult employment, protection, research, social mobilization and monitoring.

[387] Report 24221-GU Guatemala Poverty in Guatemala, World Bank,
February 20, 2003, p. 73.

[388]  According to a report that INTERPOL presented at the Intergovernmental Conference on International Adoption, held in Santiago, Chile, March 2 through 5, 1999, Guatemala ranked fourth among the countries with the highest rates of international adoption, following Russia, China and South Korea (See Latin American Institute for Education and Communication [ILPEC], Adoption and the Rights of the Child in Guatemala, 2000, p. 66.).  According to the data supplied by the Human Rights Ombudsman, Guatemala continues to put more than 2000 children a year on the international adoption market, which is why it still has “the sad distinction of ranking fourth in the number of children it puts up for international adoption.“ (See, Human Rights Ombudsman, Informe Anual Circunstanciado [Detailed Annual Report], Guatemala, 2002, p. 660).

[389] According to information that the Children’s Defender’s Office, a unit of the Human Rights Ombudsman, presented to the Commission at a meeting with the Social Movement for Children on March 24, 2003, during the Commission’s on-site visit.

[390] Bill introduced by representative Carlos Valladares to pass the adoption law, Registration No. 2784, Explanation of Reasons.

[391] See, ILPEC, Adoption and the Rights of the Child in Guatemala, 2000, p. 47.

[392] ILPEC, Adoption and the Rights of the Child in Guatemala, 2000, p. 49.

[393] Article 54 of the Constitution reads as follows:

Adoption.- The State recognizes and protects adoption.  The adoptee becomes the son or daughter of the adopting party.  The protection of orphaned and abandoned children is a matter of national interest.

[394] Informe Anual Circunstanciado [Detailed Annual Report] 2002, Dr. Sergio Fernando Morales Alvarado, Human Rights Ombudsman, Human Rights Ombudsman’s Office, 2002, pp. 660-661.

[395] The ILPEC study commissioned by UNICEF concludes that “the high international demand for children and the poverty experienced by most Guatemalan families has created a situation where the processing of adoptions occurs according to the ‘laws of supply and demand,’ effectively resulting in the trafficking of children.” (ILPEC, Adoption and the Rights of the Child in Guatemala, 2000, p. 48).

[396] See, in this regard, the document titled Política Pública a Favor de la Niñez y Adolescencia de Guatemala, 2003 [Public Policy on Behalf of Children and Adolescents in Guatemala, 2000], which states that under-registration of births is 10% in urban areas, but higher still in rural areas, areas where poverty is greatest, among the indigenous population and among women.  It does point out, however, that it does not have exact figures to prove its assertion.

[397] The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoptions entered into force on March 1, 2003.

[398] Committee on the Rights of the Child, CRC/C/15/Add.154, July 9, 2001, par. 35.

[399] According to the information reported to the IACHR at the meeting with the Social Movement for Children on March 24, 2003, during the Commission’s on-site visit.

[400] Report titled “Realidad de Guatemala: Informe sobre la situación de los derechos Humanos 2002” [The Reality of Guatemala:  Report on the Human Rights Situation 2002] covering the period from January to December 2002, and done by the Centro de Recepción de Denuncias del Grupo de Apoyo Mutuo (GAM).

[401] Informe Anual Circunstanciado [Detailed Annual Report] 2002, Dr. Sergio Fernando Morales Alvarado, Human Rights Ombudsman, Office of the Human Rights Ombudsman, 2002.

[402] According to information presented to the IACHR at the meeting held with the Social Movement for Children on March 24, 2003, during its on-site visit.

[403] Casa Alianza, list of boys, girls and youth killed from January to December 2002.

[404] According to information received during the visit to Villanueva on March 28, 2003, during the on-site visit.

[405] “Extrajudicial, Summary or Arbitrary Executions in Guatemala. Report for the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,” Myna Mack Foundation, March 2003.

[406] Convention on the Rights of the Child, Preamble, par. 6.

[407] The Inter-American Court of Human Rights, Villagrán Morales et al. Case (the “Street Children” Case), Judgment of November 19, 1999, paragraph 191.

[408] Atención a la Niñez y Juventud de la Calle, Secretaria de Bienestar Social, Foro de Protección a la Niñez y Juventud de la Calle, COPREDEH, Guatemala, October 2001, p. 661.

[409] Informe Anual Circunstanciado [Detailed Annual Report] 2002, Dr. Sergio Fernando Morales Alvarado, Human Rights Ombudsman, Office of the Human Rights Ombudsman, 2002.

[410] See Report “Guatemala: Memory of Silence,” Historical Clarification Commission (CEH), 1999, Volume V, Conclusion 28.

[411] See ODHAG, Hasta Encontrarte, Niñez Desaparecida en el conflicto interno de Guatemala [Until I See You:  Children Disappeared in Guatemala’s Internal Conflict], 2000, p. 60.

[412] According to the information that CNBND representatives provided during the hearing that the Commission held during its 118th session, October 16, 2003.