Committee on the Rights of the Child

Inquiry concerning Paraguay conducted under article 13 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure

Report of the Committee*, **

I.Introduction

1.Under article 13 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, if the Committee on the Rights of the Child receives reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention or in the Optional Protocols thereto on the sale of children, child prostitution and child pornography or on the involvement of children in armed conflict, the Committee will invite the State party to cooperate in the examination of the information and, to that end, to submit observations without delay with regard to the information concerned. Taking into account any observations that may have been submitted by the State party concerned, as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State party, the inquiry may include a visit to its territory.

2.Paraguay ratified the Convention on 25 September 1990 and the Optional Protocol thereto on a communications procedure on 20 January 2017. The procedure provided for in article 13 has therefore been applicable to Paraguay since 20 April 2017.

3.On 6 September 2020, the Committee received information regarding the deaths of Lilian Mariana Villalba and María Carmen Villalba during an operation by the Joint Task Force of Paraguay against the Paraguayan People’s Army (Ejército del Pueblo Paraguayo), a guerrilla group.

4.The Committee was of the view that the information that it had received was sufficiently reliable for the purpose of initiating an inquiry. Pursuant to article 13 (1) of the Optional Protocol on a communications procedure and rule 35 of the Committee’s rules of procedure under that Optional Protocol, the Committee decided to request Paraguay to submit observations on the issues raised before the Committee.

5.In the light of the information provided, the Committee found that the incident described above met the criteria for the establishment of an inquiry and decided to conduct a confidential inquiry into the possibility of grave or systematic violations of various provisions of the Convention with respect to the two girls’ deaths, in accordance with article 13 (2) of the Optional Protocol on a communications procedure and rule 36 of its rules of procedure under that Optional Protocol.

II.Submission by the sources of information

6.The sources allege grave violations of the rights of children in Paraguay under articles 3, 4, 6, 8 and 38 (1) and (4) of the Convention. The alleged victims of the violations were Lilian Mariana Villalba, born to Myriam Viviana Villalba Ayala on 29 October 2008, and María Carmen Villalba, born to Laura Mariana Villalba Ayala on 5 February 2009.

7.The sources allege that, on 2 September 2020, in Yby Yaú, in the Department of Concepción, the two girls referred to in paragraph 6 above were executed by the Joint Task Force during an operation against the Paraguayan People’s Army. It is asserted that, immediately after the incident, photos of the two dead girls dressed in military uniforms were taken and circulated to the media, together with a photo of a diary kept by one of the girls. It is claimed that the bodies of the two girls were hastily buried and that the Government of Paraguay initially reported that they were adult women before later reporting that they were 15 and 18 years old.

8.The sources submit that the judiciary of Paraguay requested the exhumation of the bodies, and an autopsy carried out on 5 September 2020 revealed that the girls were 11 years old. The autopsy also revealed the presence of bullet wounds on the front and back of the bodies, but forensic experts could not establish the distance at which the bullets had been fired because the clothes that the girls had been wearing had been destroyed. The excuse provided for the destruction of the clothes was that, in the context of the coronavirus disease (COVID-19) pandemic, they were contaminated waste.

9.The sources claim that the Government of Paraguay took various measures to cover up the incident, such as denying the girls’ age and the fact that they were nationals of Argentina, destroying evidence, falsely claiming that the girls were child soldiers and not conducting a proper investigation into the incident.

III.Procedural history

10.In September 2020, the Committee received a submission pursuant to articles 13 and 14 of the Optional Protocol on a communications procedure.

11.At its eighty-fifth session, the Committee considered the information received and, by note verbale of 16 October 2020, invited Paraguay to submit observations before 16 November 2020.

12.Paraguay submitted information to the Committee on 15 December 2020 and additional details on 15 January 2021.

13.At its eighty-sixth session, the Committee considered all the information received and decided to conduct a confidential inquiry into the possibility of grave or systematic violations of various provisions of the Convention with respect to the two girls’ deaths. At that session, in accordance with article 13 (2) of the Optional Protocol on a communications procedure and rules 37 and 38 of its rules of procedure under that Optional Protocol, the Committee designated two of its members, Luis Ernesto Pedernera Reyna and Ann Marie Skelton, to conduct the inquiry and invited the Government of Paraguay to cooperate with the Committee in the inquiry. The Committee requested the Government to allow the appointed members to conduct a visit to Paraguay.

14.In March 2021, the Government of Paraguay confirmed its commitment to ongoing collaboration with the investigation and designated a focal point for the inquiry.

15.On 28 July 2022, the Government of Paraguay denied the Committee’s request for a visit.

16.In the absence of the State party’s consent for a visit, the Committee decided to proceed with the inquiry with the technological means available and thus conducted an inquiry by means of video conferencing, from 27 October 2022 to 28 February 2023. A total of 32 persons were interviewed online. On 8 and 28 February 2023, the Committee interviewed officials of the State party, namely the Deputy Minister of Foreign Affairs; the Commanding Officer of the Joint Task Force; the Head of the Anti-Kidnapping Department of the National Police; the chiefs of the human rights directorates of the Ministries of the Interior, National Defence, for Children and Adolescents, and Foreign Affairs; and the Permanent Representative of Paraguay to the United Nations and other specialized agencies in Geneva.

IV.General background

17.In 2013, Paraguay adopted Act No. 5036/2013, which amended the Act on National Defence and Internal Security, and Decree No. 103/13, which provided for the use of the armed forces of Paraguay in internal defence operations in the Departments of Concepción, San Pedro and Amambay. On the basis of that regulatory framework, Paraguay established the Joint Task Force, consisting of the armed forces, the National Police and the National Anti-Drugs Secretariat. The Joint Task Force was established to combat and eliminate the non-State armed groups operating in the northern part of the country, such as the Paraguayan People’s Army, the Armed Peasants Association (Agrupación Campesina Armada) and the Marshall López Army (Ejército del Mariscal López). In 2015, a bill was submitted to repeal Act No. 5036/2013, but no further progress has been noted in the process of repealing the law.

18.The Committee notes that, in 2017, the Committee against Torture expressed concern that the de facto effect of that regulatory framework had been to establish an ongoing state of emergency and a militarization of security in the north.

19.The Committee also notes the State party’s statement that the situation in Paraguay does not amount to an armed conflict.

20.The Committee observes that, considering that an armed conflict is a precondition for the application of international humanitarian law, it has decided that, for reasons explained further in paragraphs 30 and 31 below, the regulatory framework applicable to the situation is international human rights law.

V.Findings as a result of the investigation

A.Factual and legal findings

1.State party’s actions related to the killings

21.The Committee notes that the State party recognizes that the two girls were killed by the Joint Task Force. Thus, the Committee finds that it is factually correct that the State party’s actions caused the deaths of the girls.

22.However, the Committee also finds that there is insufficient evidence before it to support the claim that the Government acted with the knowledge that the persons who were shot were children. There is also insufficient evidence to support the claim that the State party knew that there were children at the site targeted in the operation.

2.Information provided to the media

23.The Committee finds that the Government incorrectly reported to the media that the persons who were killed were adults, then reported that they were 15 and 18 years of age and, finally, after the court-ordered exhumation and autopsy conducted on 5 September 2020, issued the correct information regarding their age, which was 11 years at the time of their deaths.

3.Investigation of the deaths

24.The Committee finds that the evidence reveals that the investigation conducted by the Government into the girls’ deaths was marred by errors and inadequacies.

25.The State party referred to a COVID-19 protocol to justify the decision to burn the girls’ clothes and belongings. The impossibility of examining the girls’ clothes undermined attempts to clarify crucial aspects of the operation, such as the distance at which the shots had been fired. The Committee observes that, according to the State party’s protocol for the handling of dead bodies in the context of the COVID-19 pandemic, if personal belongings are to be destroyed as contaminated waste, they should be properly documented, and a justification for the procedure should be provided. It is noted that the destruction of evidence is not required under the protocol; rather, the protocol sets out the procedure to be followed in the event that such belongings are to be destroyed. The Committee finds that, given the circumstances in which the deaths occurred, a far more rigorous approach was required and that the destruction of evidence, albeit due to the COVID-19 pandemic, was not in line with the requirements of a thorough forensic investigation. The hygiene standards for COVID-19 protection should not have outweighed the need to properly investigate the girls’ deaths.

26.In this regard, the Committee notes the importance of the lost evidence to a full investigation of the circumstances of the girls’ deaths. According to the testimony of a person who saw the bodies soon after the killings, the girls were wearing military-style uniforms. The State party’s authorities claim that the girls were wearing military-style uniforms when they were killed. The girls’ clothing would have been valuable evidence to consider along with other information pertaining to the shootings. However, as a result of the order issued by the prosecutor to destroy the clothes that the girls had allegedly been wearing, the Committee has insufficient evidence to make a finding that the girls were wearing military‑style uniforms when they were killed. In addition, valuable information was lost that might have shed further light on the shootings.

27.On the basis of the evidence, the Committee finds that the girls’ bodies were initially buried without a full forensic examination. The evidence shows that no autopsies were performed to identify the circumstances of the girls’ deaths. Moreover, according to the information collected, the State party did not properly explain why it had failed to carry out a full examination of the girls’ bodies immediately after their deaths. The Committee finds it remarkable that the initial examination of the bodies failed to reveal that the deceased were 11-year-old children.

28.According to the information received, the State party was unwilling to agree to requests for an independent forensic examination of the girls’ bodies. The Committee finds that Paraguay received offers of assistance to carry out an independent investigation into the circumstances of the girls’ deaths, notably to perform new autopsies to determine the cause of the children’s deaths and their identities. However, the State party did not take the necessary measures to accomplish this.

29.The evidence shows a lack of specialized expertise and infrastructure to properly investigate potentially unlawful deaths. The inquiry has revealed that the State party does not have the facilities, technology or capacity to conduct investigations in accordance with international human rights standards. According to the evidence, the State party has serious logistical limitations, a lack of capacity to implement the key principles of human rights during investigations of potentially unlawful deaths and a lack of instruments such as scales, X-ray machines and computed tomography scanners.

4.Insufficient evidence of a situation of armed conflict

30.Regarding the sources’ submission that the facts amount to a situation of armed conflict, the Committee notes that, according to the International Committee of the Red Cross, non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State party to the Geneva Conventions of 1949. The armed confrontation must reach a minimum level of intensity, and the parties involved in the conflict must show a minimum of organization.

31.In this regard, the Committee finds that there is insufficient evidence before it to make a determination as to whether the situation in the State party at the time of the incident surpassed the minimum threshold to qualify as a non-international armed conflict.

B.Findings regarding violations of articles 6 (1) and 4

32.Under article 6 (1) of the Convention, a State party has an obligation to guarantee to every child within its territory the inherent right to life. Under article 4 of the Convention, States parties have an obligation to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention.

33.The Committee notes that children have the right not to be arbitrarily deprived of life. The right to life is the supreme right from which no derogation is permitted.

34.To uphold the right to life, States must comply with their duty to investigate violations. The obligation of States to investigate and prosecute the perpetrators when they are aware of potentially unlawful deprivations of life is an important element of the protection of the right to life. As observed by the Human Rights Committee, investigations and prosecutions of potentially unlawful killings should be undertaken in accordance with relevant international standards and must be aimed at ensuring that those responsible are brought to justice, promoting accountability and preventing impunity, avoiding a denial of justice and drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations.

35.The Committee draws the State party’s attention to the fact that, under the United Nations framework, the State party’s obligation to respect and protect life and the procedural obligation to investigate suspicious deaths are grounded in the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, which were welcomed by the Economic and Social Council in 1989 after an intergovernmental process and endorsed by the General Assembly in the same year.

36.The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provide that there should be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the circumstances. The aim of the investigation should be to determine the cause, manner and time of death, the person responsible and any pattern or practice that may have brought about that death (para. 9). In addition, it is noted in the Principles that those persons conducting the investigation should have at their disposal all the necessary budgetary and technical resources for an effective investigation (para. 10).

37.Furthermore, in accordance with the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, a thorough investigation should include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses (para. 9).

38.Pursuant to the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, the body of the deceased person should not be disposed of until an adequate autopsy has been conducted by a physician (para. 12). Moreover, the autopsy should, at a minimum, attempt to establish the identity of the deceased and the cause and manner of death. The time and place of death should also be determined to the extent possible (para. 13). In addition, those conducting the autopsy should have the right of access to all investigative data, to the place where the body was discovered and to the place where the death is thought to have occurred (para. 12). Furthermore, those conducting the autopsy must be able to function impartially and independently of any potentially implicated persons or organizations or entities (para. 14).

39.The State party must also ensure the independence of the investigation. Pursuant to the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, in cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality and in cases in which there are complaints from the family of the victim about those inadequacies or other substantial reasons, Governments should pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission should be chosen for their recognized impartiality, competence and independence as individuals. In particular, they should be independent of any institution, agency or person that may be the subject of the inquiry. The commission should have the authority to obtain all information necessary to the inquiry and should conduct the inquiry as provided for under the Principles (para. 11).

40.The principle of transparency must also be respected by the State. At a minimum, States should be transparent about the existence of an investigation, the procedures to be followed in the investigation and the investigation’s findings, including their factual and legal basis. In that regard, the Principles on the Effective Prevention and Investigation of Extra‑legal, Arbitrary and Summary Executions provide that a written report on the methods and findings of such investigations should be made within a reasonable period of time. The Government should, within a reasonable period of time, either reply to the report of the investigation or indicate the steps to be taken in response to it (para. 17).

41.In view of the above, the Committee finds that the way in which the investigations were carried out indicates either extraordinary negligence on the part of the State party or a wilful attempt to cover up the fact that the persons who were killed were 11-year-old children. On the basis of the evidence, the Committee also finds that the State party is in breach of article 6 (1) of the Convention insofar as:

(a)The killings by the Joint Task Force of Lilian Mariana Villalba and María Carmen Villalba constituted arbitrary deprivation of life in violation of article 6 (1) of the Convention. This finding is based on the fact that: (i) deprivation of life is, as a rule, arbitrary if it is inconsistent with international law; (ii) all actions of law enforcement officials, including soldiers charged with law enforcement missions, should comply with relevant international standards, including the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; (iii) law enforcement officials should not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury; and (iv) the information submitted by the State party has not sufficiently established the fact that the killing of the girls by the Joint Task Force during its operation was carried out in such exceptional circumstances as to qualify it as unarbitrary;

(b)The Joint Task Force, a national defence and internal security body of Paraguay, directly caused the deaths of the girls in circumstances that required investigation. The State party did not comply with its duty to investigate the girls’ deaths promptly, effectively, thoroughly, independently, impartially and transparently, which amounts to a breach of article 6 (1). It also amounts to a breach of article 4, in that the State party failed to take appropriate measures to uphold the girls’ rights under the Convention. The failure to conduct a proper examination of the bodies was evidenced by the failure to identify before their burial that the girls were 11 years old. The bodies were hastily buried in violation of the principle that the body of a deceased person should not be disposed of until an adequate autopsy has been carried out. It was only after a court had ordered the exhumation of the bodies that an autopsy was carried out. Crucial evidence related to the girls’ clothing was destroyed instead of being preserved for thorough examination, and such destruction was not required by the Government’s own COVID-19 protocol, which it cites as a justification. The destruction of the clothing for health-related reasons was disproportionate given the requirement to preserve evidence for thorough examination.

42.The Committee finds that article 38 of the Convention applies only in circumstances of armed conflict. The Committee finds that the facts before it do not disclose a violation of that article.

C.Grave or systematic nature of the violations

43.According to rule 35 of its rules of procedure under the Optional Protocol on a communications procedure, the Committee must assess whether the violations of rights are grave or systematic.

44.The Committee considers violations to be “grave” if they are likely to produce substantial harm to victims. A determination regarding the gravity of violations must take into account the scale, prevalence, nature and impact of the violations found.

45.The term “systematic” refers to the organized nature of the acts leading to the violations and the improbability of their random occurrence.

46.The Committee notes the inclusion of arbitrary executions within the concept of “gross and systematic violations” in the Vienna Declaration and Programme of Action (part I, para. 30). Similarly, in accordance with the human rights due diligence policy on United Nations support to non-United Nations security forces, the term “grave violations” refers to gross violations of human rights, including extrajudicial killings. The Committee notes that scholars define “gross violations” with reference to a combination of three factors: (a) the type of right(s) violated; (b) the character of the violation; and (c) the characteristics of the victims.

47.Consequently, the Committee considers the arbitrary deprivation of life of the two 11‑year-old girls to be grave because the right to life is non-derogable, and an arbitrary deprivation of life is, by its nature, very serious. An additional factor in the gravity of the violation was the direct involvement of the State party’s Joint Task Force.

48.The Committee considers the fact that the State party failed to carry out a diligent investigation in accordance with the principles of international human rights law to be an aggravating circumstance. It contributes to the finding of a grave violation, since the State party either acted with gross negligence or wilfully covered up crucial aspects of the investigation.

49.The Committee finds that the Inter-American Court of Human Rights has previously found that the fact that victims of rights violations are children is a factor that weighs in favour of a finding of a grave violation, as States have a special duty to protect children. The Committee considers that the fact that the girls were 11 years old at the time of their deaths is an additional factor that contributes to its finding that the violation of the right to life was grave.

50.Taking the above-mentioned cumulative factors into account, the Committee finds that the State party is responsible for grave violations of rights set forth in the Convention, as it did not comply with its obligations to respect, protect and fulfil the two girls’ right to life. In particular, it is responsible for:

(a)A violation of article 6 (1), due to the arbitrary deprivation of life of Lilian Mariana Villalba and María Carmen Villalba;

(b)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.

51.The Committee finds that insufficient evidence has been made available to it to allow for an assessment of whether the situation amounted to one of systematic violations of rights under the Convention.

VI.Recommendations

52. The Committee recommends that the State party take adequate steps to bring the investigation of the two girls ’ deaths to a close, in particular by:

(a) Taking further steps to establish the truth, acknowledge the facts and accept responsibility for the failures in the investigation procedures;

(b) Considering the possibility of accepting the assistance of an international expert mission or the Special Rapporteur on extrajudicial, summary or arbitrary executions to determine what steps remain to be taken that could bring the investigation to a satisfactory conclusion, particularly with regard to the collection and analysis of forensic evidence, and to determine whether there is any value in analysing genetic material from the girls ’ bodies to determine their biological filiation;

(c) Duly considering all the reports on the incident, as well as the testimonies of family members or other people who witnessed the events.

53. The Committee also recommends that the State party:

(a) Strengthen its investigation infrastructure, including by promoting and disseminating the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions;

(b) Provide capacity-building missions and adequate human, financial and material resources to fill the gaps in knowledge, infrastructure and logistics in the State party with respect to investigations of arbitrary deprivations of life.

54. The Committee further recommends that the State party review the legal and regulatory framework pertaining to its law enforcement officials, in particular by:

(a) Establishing independent bodies at the local level with the capacity to supervise investigations of misconduct and crimes committed by law enforcement officials, including, while it continues to operate, the Joint Task Force;

(b) Organizing training programmes and support projects to train and educate the State party ’ s law enforcement officials in international humanitarian and human rights law connected with their work and include a gender and child rights perspective in such training;

(c)Ensuring that the police, law enforcement agents, armed forces and other agents acting on behalf of or with the consent or acquiescence of the State party act with restraint and in conformity with international human rights law and international humanitarian law, including the principles of proportionality and necessity;

(d)Ensuring that police and law enforcement officials are guided by the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

VII.Follow-up

55. The Committee requests the State party to inform it within six months of the measures that it has taken and intends to take and recommends that the State party disseminate the Committee ’ s conclusions and recommendations.