¿Se encuentran protegidas las esposas o compañeras menores de 15 años de los miembros de las partes en un conflicto armado no internacional frente a la violencia sexual ejercida por sus propias parejas o por otros miembros del grupo al que pertenecen?

Abstract

The general protection provided for in non international armed conflicts to the civilian population (girls under the age of 15 are part of such civilian population) by common article 3 of the Geneva Conventions, does not depend on any affiliation with any of the parties to the conflict. Such protection extends, in principle, to all acts of violence, including those of sexual nature committed by members of the party to the conflict with which the victims (girls under the age of 15) are affiliated. The cases against Thomas Lubanga and Bosco Ntaganda show that, as a general rule, girls under the age of 15 do not carry outactivities of direct participation in hostilities for an extended time. As a result, despite joining organized armed groups as wivesn or partners of the commanders of the groups, they don‟t assume a continuous combat function and cannot be considered members of the group, as such. The Lubanga and Ntaganda cases also show that those acts of sexual nature coercively undertaken by girls under the age of 15 (usually with those commanders and group members who married them),do not meet any of the three requirements embodied in the notion of direct participation in hostilities because: (a) such sexual acts are not suitable to directly cause the required level of damage; (b) they do not form an integral part of any military operation that might cause such damage; and (c) they do not possess any belligerent nexus, since they are not specifically directed at causing a prejudice to the adverse parties. Moreover, according to Trial Chamber I in the Lubanga case, other activities carried out by those girls under the age of 15 enlisted (or recruited) by the FLPC - including domestic work (such as cleaning and culinary tasks), transportation of food to military bases, and escorting the wives of the FPLC commanders -, do not meet with the abovementioned requirements of the notion of direct participation in hostilities. As a result, such girls do not participate directly in the hostitilities and do not lose at any time their protection under common article 3. Children under the age of 15 are a particularly vulnerable population. As a result, they have a special protection during armed conflicts (regardless of their international o noninternational nature). This special protection is provided for in the 1989 Convention on the Rights of Children, the 1949 Geneva Conventions and their 1977 Additional Protocols, the 1998 ICC Statute, and UN Security Council Resolutions 1882 (2009), 1960 (2010) and 2106 (2013). This special protection also covers those acts of sexual violence committed against girls under the age of 15 by commanders or members of national armed forces or organized armed groups that enlist or recruit them. In conclusion, general and special protections, which girls under the age of 15 are entitled to, extends to sexual violence against those commanders or members of the group that enlisted or recruited them. This is so even if such violence is carried out by those who took them as wives or partners. Girls under the age of 15 enlisted (or recruited) between 2002 and 2003 by the FPLC of Thomas Lubanga and Bosco Ntaganda were undoubtedly entitled to such general and special protections.