Initial report on compliance with the optional protocol to the convention on the rights of children in relation to the involvement of children in armed co



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FEDERATIVE REPUBLIC OF BRAZIL


INITIAL REPORT ON COMPLIANCE WITH

THE OPTIONAL PROTOCOL TO THE CONVENTION

ON THE RIGHTS OF CHILDREN IN RELATION TO THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICTS

Brasilia, December 2012




Introduction 3

Information on compliance with Articles 1-17 of the Protocol


Article 1 6

Article 2 6

Article 3 8

Paragraph 1

Paragraphs 2 and 4

Paragraph 3

Paragraph 5

Article 4 14

Article 5 14

Article 6 17

Paragraph 1 and 2

Paragraph 3

Article 7 19
Annexes

1 - Relevant provisions of the Federal Constitution 20

2 - Relevant provisions of the Military Service Law 21

3 - Relevant provisions of the Military Service Regulations 29

4 - Relevant provisions of the General Instructions for the Health Evaluation of Armed Forces Conscripts 53

5 – Relevant provisions of the Military Penal Code 62

6 – Relevant provisions of the Law 9394 of December 20, 1996 (Law on the Base and Guidelines for National Education) and to Law 9786 of February 8,

1999 on Education in the Army 66



7 – Relevant provisions of the Military Schools Regulations (R-69) 69

8 – Relevant provisions of the Military Schools Internal Regulations (RI/CM) 101

9 – Norms that Regulate the Disciplinary Regime of Military Schools (NRRD/DEPA) 127

10 Disaggregated Data on Students in Brazil’s Military Academies 140

Introduction
1. Consistently with its human rights policy and its adherence to the Convention on the Rights of the Child (hereafter referred to as “the Convention”) in September 1990, on January 27, 2004 Brazil ratified the two Optional Protocols to the Convention on the Rights of the Child (the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict –opcrc/ac, “the Protocol,” and the Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography – OPCRC/SC). The ratification of the two Protocols was made possible by the National Congress’s authorization issued through Legislative Decree No. 230 of May 29, 2003 in conformity with Article 49, of the Brazilian Federal Constitution.
2. This report provides information on the Federative Republic of Brazil’s compliance with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, in respect of Article 8, paragraph 1 of the Protocol published internally in the form of presidential Decree No. 5006 of March 8, 2004.
3. Before proceeding with the presentation of detailed information on the Protocol’s implementation in Brazil, some general aspects of Brazilian policies and norms regarding the protection of children and the Armed Forces should be pointed out for a better understanding of the circumstances surrounding Brazil’s participation in the OPCRC/AC.
4. Article 4 of the Federal Constitution establishes, as one of the principles that govern Brazil’s foreign policy, the prevalence of human rights and cooperation among peoples for mankind’s progress (Art. 4, II and IX), as well as the defense of peace and the peaceful solution of conflicts (Art. 4, VI and VII).
5. In this connection, Brazil has implemented an active policy for the international promotion and protection of human rights, based on an open, transparent, and cooperative dialogue to address human rights issues in our country; on the pursuit of a consensus conducive to advancing international respect for human rights; on the emphasis on prevention measures, such as technical assistance and training in this area; and on the advocacy of universal, nonselective international monitoring of these rights. As regards the rights of the child in particular, even before adhering to the Convention, Brazil already had internal legislation aimed at implementing the Convention’s principles: the Statute of the Child and the Adolescent (ECA, Law 8069 of July 13, 1990 and subsequent amendments).
6. The Brazilian Government carries on a significant dialogue with the Committee on the Rights of the Child so as to enhance the implementation of the provisions of the Conventions at home, particularly through its initial report submitted in 2003 and considered by the Committee in 2004.
7. In conformity with the principles of defense of peace and peaceful solution of conflicts, Brazil has been a pillar of stability in the region in respect of armed conflicts. For more than 130 years, Brazil has not been involved in any armed conflict with neighbor countries, namely, since the end of the Paraguayan War in 1870. Today, the countries involved in that conflict are partners in the Mercosur integration process. World War II was the last armed conflict, in which Brazil entered after the aggression against Brazilian merchant ships by Axis submarines. The state of war was declared through Decree No. 10358 of August 31, 1942 and ended by Decree No. 19955 of November 16, 1945.
8. Not currently involved in any international or internal armed conflict, Brazil has endeavored to contribute to international peace and security by participating in peace maintenance operations under mandates defined by the pertinent international organizations.
9. Military service in Brazil has been traditionally compulsory. Since the 1891 Constitution, this obligatory requirement has been constitutionally regulated. Law 1860 of January 4, 1908 made military service in the Army compulsory. In 1916, under the cloud of World War I, an intense civic campaign waged in favor of compulsory military service, led by intellectuals such as the poet Olavo Bilac, encouraged the extensive implementation of the military service through the drawing of lots. This system was in force until 1945, when general drafting was instituted, based on age. This system is still in place. Art. 143 of the 1988 Federal Constitution states that military service is compulsory under the law. Military service legislation requires that all Brazilian males must register in the year when they reach the age of 18 and join the Armed Forces in the year when they reach the age of 19, consistently with the provisions of the Convention and the Protocol, as will be shown in greater detail further on.
10. In addition to maintaining the compulsory character of military service in accordance with the law, the 1988 Federal Constitution introduced an important innovation—Art. 143, so that paragraph 1 should read as follows: It is incumbent upon the Armed Forces, in accordance with the law, to assign an alternative service to those who, in time of peace, after being enlisted, allege reasons of conscience, which shall be interpreted as reasons based on religious, philosophical or political belief, for being exempted from essentially military activities. In this manner, the Fatherland’s and the constituted powers’ defense needs are brought into harmony with the protection of the fundamental liberties of conscientious objectors. The rendering of services as an alternative to compulsory military service was regulated by Law 8239 of October 4, 1991. Article 3, paragraph 2 of this law defines Alternative Military Service as the rendering of activities of an administrative, assistance, philanthropic or even of a productive nature in substitution for activities of an essentially military character. The Alternative Service Regulation, approved by Administrative Rule No. 2681 of July 28, 1992, issued by the Armed Forces’ Chief of Staff, provides in its Art. 6 for the rendering of voluntary alternative service by Brazilians, starting in the year they reach the age of 17.
11. Art. 143, paragraph 2 of the Constitution, also exempts women and clergymen from compulsory military service. But there are various possibilities for women to pursue a military career, after passing a higher-education level public competitive examination, or to serve as temporary members of the military, as technical or higher-education level trainees. In all cases, enlistment is voluntary and women under 18 are not admitted; thus, the application of Optional Protocol provisions in Brazil refers basically to male individuals.
12. Despite the possibility conscientious objectors have of rendering alternative service, what happens most often in Brazil is that thousands of young men aged 18 years old, who are in condition to do entry-level military service, are not taken up into the Armed Forces due to the excess of contingents. These contingents include those individuals considered unfit for military service but, above all, those that exceed the Armed Forces’ needs. The traditional excess of contingents for entry-level military service in Brazil is associated with the proportion of the Brazilian Armed Forces in relation to the overall population. The feasibility of all young men aged 18 that are not conscientious objectors to be taken up into the Armed Forces would be problematic in view of the costs involved in food, lodging, uniforms, payment, equipment, and so on. In 2010, for example, out of a total population estimated at 190, 755, 799, of which 1,701,889 are males aged between 17 to 181, only 78,354 young men2 were screened for compulsory military service. In view of the excess of contingents, the Brazilian Armed Forces do not take up individuals under the age of 18 years old.
13. In view of the preceding, it is clear that the Optional Protocol applies to Brazil as a developing country with a tradition of peace, which endeavors to guarantee full respect for human rights, is not involved in any internal or international armed conflicts, and whose needs are fully met by the enlisting of young men the year they attain the age of 19 years, and thus has no need to induct minor volunteers.
14. In this report, the term “child” is used in the sense of Art. 1 of the Convention, but it should be added that, without prejudice to international protection norms, Brazilian legislation (Statute of the Child and the Adolescent) makes a distinction between children (those under 12 years of age) and adolescents (those aged 12 to 18 years). As regards armed conflicts, the concepts generally recognized by International Humanitarian Law have been used, encompassing the following:

(a) international armed conflicts, which involve at least two States, whether war has been declared or not, including struggles against colonial domination and foreign occupation and racist regimes, in the exercise of the peoples’ self-determination right, in accordance with Art. 2 common to the Four Geneva Conventions of 1949, and with Art. 1 of the 1977 Optional Protocol I.

(b) internal armed conflicts, which refer to “Any situation where, within a State’s territory, clear and unmistakable hostilities break out between the armed forces and organized armed groups 3 or in which “dissident forces are organized under the leadership of a responsible command and exercise such control over a part of the territory as to enable them to conduct sustained and concerted military operations,”4 such as civil wars.
15. Special consideration has been given to the guidelines issued by the Committee on the Rights of the Child in preparing this report in accordance with Art. 8 of the OPCRC/AC. Its preparation was coordinated by the Human Rights Division of the Ministry of External Relations under consultation with the National Secretariat for the Promotion of the Rights of the Child and the Adolescent of the Secretariat for Human Rights under the Presidency of the Republic, the Ministry of Defense, the Ministry of Justice, and the Ministry of Education.
Information on compliance with Articles 1-17 of the Protocol

Article 1

16. Brazil has not been involved in armed conflicts since 1945. The Brazilian Constitution and legislation make military service compulsory for all Brazilian males, exception being made for conscientious objectors. This obligation begins in the year Brazilian males reach the age of 18 years but those drafted are actually inducted into the Armed Forces only in the year when they attain the age of 19 years, in accordance with the provisions of Art. 3 of the Military Service Law (LSM - Law 4375 of August 17, 1964 and amendments – Annex 2) and with the prior procedures of registration, general selection, distribution, designation, and final selection. Although the legislation allows the rendering of voluntary military service by those aged 17, at the discretion of the interested Armed Force, in recent years no volunteers under 18 have been inducted, in view of the excess of contingents.


17. Brazilian legislation does not have its own concept of taking “direct part in hostilities” such as the one expressed in Art. 1 of the Optional Protocol and in the pertinent provisions of international humanitarian law. It should be recalled that Brazil has not been involved in armed conflicts since World War II, which antecedes all the above-mentioned international instruments. Brazil has followed the discussions about possible initiatives for ensuring greater comprehension of the concept of direct participation in hostilities on the international plane.

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