Introduction

In its second inquiry report, the Committee on the Rights of the Child found that the State of Paraguay is responsible for grave human rights violations concerning the killings of two 11-year-old girls during an operation conducted by the Joint Task Force against the Paraguayan People’s Army. In particular, the State of Paraguay is held accountable for the arbitrary deprivation of life of the girls and for failing to conduct a proper investigation. This is the first inquiry report where the Committee concludes the existence of grave but non-systematic violations of children´s rights.

Facts

According to the information provided by the sources of information, Lilian Mariana Villalba and María Carmen Villalba were executed by the Joint Task Force during an operation against the Paraguayan People’s Army, a guerrilla group, conducted on 2 September 2020 in Yby Yaú in the Department of Concepción. The sources of information claimed that, immediately after the killings, photos of the two dead girls dressed in military uniforms were taken and circulated to the media, their bodies were hastily buried and the Government of Paraguay reported that they were adult women before later reporting that they were 15 and 18 years old.

The sources of information noted that the Judiciary of Paraguay requested the exhumation of the bodies. They also claimed that an autopsy carried out three days later revealed the girls were 11 years old and the presence of bullet wounds on the front and back of their bodies.

The sources of information finally noted that the Government of Paraguay took various measures to cover up the executions, denying the girls’ age, destroying evidence, falsely claiming that the girls were child soldiers and not conducting a proper investigation.

Complaint

The sources of information alleged grave violations of children´s rights in Paraguay under articles 3 (best interests of the child), 4 (undertake all appropriate measures), 6 (right to life), 8 (right to preserve her identity) and 38 (armed conflicts) of the Convention on the Rights of the Child (CRC). The alleged victims of the violations were Lilian Mariana Villalba, born on 29 October 2008, and María Carmen Villalba, born on 5 February 2009.

Procedural history

In September 2020, the Committee on the Rights of the Child received a submission pursuant to articles 13 (inquiry procedure for grave or systematic violations) and 14 (follow-up to the inquiry procedure) of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

At its eighty-sixth session, the Committee on the Rights of the Child considered all the information received and concluded it was sufficiently reliable for the purpose of initiating a confidential inquiry into the possibility of grave or systematic violations of various provisions of the CRC with respect to the two girls’ deaths. The Committee designated Luis Ernesto Pedernera Reyna and Ann Marie Skelton to conduct the inquiry and invited the Government of Paraguay to cooperate and to allow the appointed members to conduct a visit to the country. The Government of Paraguay denied the request for a visit.

In the absence of the consent for a visit, the Committee on the Rights of the Child decided to proceed with the inquiry through technological means, interviewing 32 persons online, including witnesses and officials of the State of Paraguay.

Findings

The Committee on the Rights of the Child found that the State of Paraguay is responsible for grave violations of rights set forth in the CRC:

1. A violation of article 6 (1), due to the arbitrary deprivation of life of Lilian Mariana Villalba and María Carmen Villalba;
2. A violation of article 6 (1) and a violation of article 4, due to its failure to investigate the deaths properly, resulting in a deficit of comprehensive information about the cause, manner and circumstances of the girls’ deaths.

The Committee also found that insufficient evidence had been made available for an assessment of whether the situation amounted to systematic violations of rights. Similarly, the Committee found that there was insufficient evidence to decide whether the situation in Paraguay, at the time of the killings, surpassed the minimum threshold to qualify as a non-international armed conflict.

Commentary

In this section, I will comment on two issues that, in my opinion, deserve further analysis: violations of right to life as grave and the inquiry procedure as a mechanism to investigate individual violations of rights.

1. Violation of right to life as “grave”

The Committee on the Rights of the Child has established the right to life as one of the four general principles of the CRC. Therefore, article 6 of the Convention recognizes not only a right in itself, but also a standard for interpreting and implementing all the other children´s rights. In the inquiry report concerning Paraguay, the Committee follows this line of thought pointing out that “the right to life is the supreme right from which no derogation is permitted” (para. 33).

The Organs of the Inter-American System of Human Rights also establish the supreme value of the right to life. The Inter-American Commission has recognized the nature of ius cogens of the right to life since 1987 when it stated “that in the member States of the OAS there is recognized a norm of jus cogens which prohibits the State execution of children”. ¹ On its part, the Inter- American Court has ruled that “the right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible”. ²

In this normative context, the finding of the Committee on the Rights of the Child of considering the arbitrary deprivation of life of the two 11-year-old girls as grave can be unsurprising. However, this decision can have a relevant impact in the future implementation of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

The jurisprudence of the Committee has established that violations of children´s rights are “grave” if they are likely to produce substantial harm to victims, considering the scale, prevalence, nature and impact of the violations. In the inquiry regarding Paraguay, the Committee on the Rights of the Child found that “the right to life is non-derogable, and an arbitrary deprivation of life is, by its nature, very serious” (para. 47). In other words, arbitrary deprivation of life is very serious per se regardless of its scale, prevalence and impact. The seriousness is part of the nature of arbitrary deprivation of life. Moreover, the Committee found the fact that the victims were children is an additional factor to consider the violation of the right to life as grave. As a result, arbitrary deprivation of life of children surpasses the threshold of “grave or systematic violations” required for inquiry procedures.

Debates in relation to this finding will be presented next. For now, it is important to highlight that the Committee on the Rights of the Child found that the State of Paraguay is also responsible of a grave violation of articles 6 (1) and 4 of the Convention on the Rights of the Child due to its failure to investigate the deaths properly. In this respect, the Committee concluded that “to uphold the right to life, States must comply with their duty to investigate violations” (para. 34). This has been named as a “procedural obligation” by the European and the Inter-American Court of Human Rights. As explained by the latter, the obligation to protect the right to life involves an obligation to carry out an effective official investigation. ³ In other words, the right to life involves (a) the negative obligation to not arbitrarily deprive persons from their lives and (b) the positive obligation to adopt all appropriate measures to investigate and prosecute the perpetrators in case of potentially unlawful deprivation of life.

The Committee elaborates the standards that States must respect when fulfilling their procedural obligation, mentioning the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1989). As a result, the inquiry report establishes that investigations of children’s rights violations, according to article 6 (1) and 4 of the Convention on the Rights of the Child, should be prompt, effective, thorough, independent, impartial and transparent.

The Inter-American Court of Human Rights has significant jurisprudence discussing the content of this procedural obligation. For example, the Court has expressed that the duty to investigate is an obligation of means and not of results, which does not mean it constitutes a mere formality preordained to be ineffective. However, more importantly for this case note, the Inter-American Court has developed specific standards regarding the obligation to investigate deaths of girls. In these cases, the Court has established that the duty of States to protect the right to life is particularly strict and significant in cases of violence against girls. The intrinsic vulnerability of childhood may be enhanced because girls are particularly vulnerable to violence, especially gender-based violence. This translates into an obligation of States to act with greater and more rigorous diligence. ⁴

In the inquiry report concerning Paraguay, the Committee on the Rights of the Child neither analysed the role that gender played in the arbitrary deprivation of life of Lilian Mariana Villalba and María Carmen Villalba nor developed specific standards that must be fulfilled in investigations regarding arbitrary executions of girls.

2. Inquiry procedure as a mechanism to investigate individual violations of rights

The inquiry concerning Paraguay is the second investigation conducted under article 13 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC). In its first inquiry procedure, the Committee investigated the situation of children and adolescents, deprived of a family environment, living in residential centres in Chile. The Committee found grave and systematic violations of articles 2, 3 (1) and (2), 4, 6, 9, 12, 18, 19, 20, 23, 24, 25, 28, 31, 34, 37 (a) and 39 of the CRC due to four structural causes. Meanwhile, in its second inquiry, the Committee investigated violations of various provisions of the CRC with respect to the killings of two 11-year-old girls, stablishing that structural causes or systematic acts are not necessary to conduct an inquiry. The grave character of the violations is enough to surpass the threshold of article 13 of OPIC.

Consequently, arbitrary deprivation of children´s lives can be investigated through inquiry procedures but also via individual communications. This raises questions regarding the limits, interactions, overlapping and differences between these two mechanisms when addressing individual violations to article 6 (1).

Future decisions of the Committee should respond to these questions. Nevertheless, I would like to present two important issues to consider at the current stage of the debate.

2.1 Exhaustion of domestic remedies

Individual communications have admissibility requirements expressly listed in article 7 of OPIC, including the exhaustion of all available domestic remedies unless their application is unreasonably prolonged or unlikely to bring effective relief. Inquiry procedures demand a threshold of reliable information indicating grave or systematic violations of rights, but this mechanism does not consider a list of admissibility requirements. Therefore, it is not necessary to exhaust all domestic remedies before initiating an inquiry procedure.

The exhaustion of domestic remedies may limit children accessing mechanisms considered in the Optional Protocol or be a tool that further children’s access to justice. ⁵This is part of the debate. But, this admissibility requirement connects domestic with international mechanisms, which is an objective of the Optional Protocol. Indeed, its Preamble expresses that this instrument aims to reinforce and complement national and regional mechanisms.

In response to the inquiry report regarding the arbitrary deprivation of life of Lilian Mariana Villalba and María Carmen Villalba, the State of Paraguay protested the publication of the findings because it relates to investigations that are being conducted at a national level. ⁶ In its observations, the State of Paraguay explained that the deaths of the two girls are being investigated by a specialized Public Prosecutor. ⁷

This shows that complementing and strengthening domestic remedies remains key after the first decade of the Optional Protocol, ⁸ particularly for inquiry procedures.

2.2 The role of victims and representatives

In individual communications, authors have an active role throughout the procedure: they submit the communication, must provide clarification or additional information if requested by the Committee, must satisfy the admissibility criteria and may participate in oral hearing, friendly settlements and follow ups. In this quasi-judicial mechanism, authors have the procedural obligation to provide enough evidence to generate conviction in the members of the Committee and the right to decide the best way to push forward their interests, e.g. reaching or not a friendly settlement. In summary, authors are considered a party in a quasi-judicial procedure.

On the other hand, the role of sources of information is limited to provide reliable information indicating grave or systematic violations of rights. Then, members of the Committee on the Rights of the Child are designated to conduct an inquiry and to report. Therefore, they are responsible of collecting enough evidence to generate conviction. In the inquiry concerning Paraguay, the process of evidence collection was influenced by the denial of the Government of Paraguay to receive a visit of the members of the Committee. As a result, they were able to collect enough evidence to conclude a grave violation of rights. However, it was insufficient to conclude their systematic nature and to qualify the situation in the State party as a non-international armed conflict. Would the result be different having the sources of information a more active role?

Ultimately, the inquiry report regarding the arbitrary deprivation of life of Lilian Mariana Villalba and María Carmen Villalba opens the debate about the limits, interactions and overlapping between communications, inquiries and domestic remedies in individual cases. Following the Preamble of the Optional Protocol, the response to these questions should be oriented to the construction of a justice system that (a) guarantees the best interests of children as a primary consideration to be respected; (b) recognizes the special and real difficulties of children in pursuing remedies; and (c) considers the need for child-sensitive procedures at all levels.