2. International Humanitarian Law
a. Basic Rules of Humanitarian Law
36. The nature and severity of the violations of international
humanitarian law by the parties to the conflict in Colombia require the Commission to call
to the attention of all parties to this tragic conflict certain centuries-old precepts
applicable to the waging of war in armed conflicts. Modern humanitarian law is largely the
product of centuries of warfare from which rules and customs governing the conduct of
hostilities have developed and crystallized. This development has been principally
stimulated and supported by members of the military who have recognized that violence and
destruction which are superfluous to actual military necessity are not only immoral and
wasteful of scarce resources, but also are utterly counterproductive to the attainment of
the political objectives for which military force is used.
37. Experienced military planners have long recognized that among the
measures not permitted by military necessity are any acts of hostility that make the
return to peace unnecessarily difficult. Thus, in the Fourth Century B.C., Sun Tzu in his
classic work The Art of War, admonished against committing atrocities as they
infuriated the enemy, stiffened their resistance and increased their fighting ability,
rather than paralyzing them with terror. These wise injunctions and observations find
expression in the customary law principles of military necessity and humanity which
underlie the law governing the conduct of hostilities in armed conflicts. The principle of
military necessity justifies those measures of military violence, not forbidden by
international law, which are necessary and proportionate to securing the prompt submission
of the enemy with the least possible expenditure of human and/or economic resources.
38. The principle of humanity both complements and inherently limits
the doctrine of military necessity. This principle prohibits the infliction of suffering,
injury or destruction not actually necessary, i.e. proportionate, for the realization of
lawful military purposes. Moreover, the principle of humanity also confirms the basic
immunity of civilians from being the object of attack in all armed conflicts. Accordingly,
the conduct of hostilities by the parties to all armed conflicts must be carried on within
the limits of the prohibitions of international law, including the restraints and
protections inherent in the principles of military necessity and humanity.
b. The Principle of Distinction
39. In its interpretation and application of humanitarian law rules,
the Commission has been guided by relevant decisions of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 ("Yugoslavia
Tribunal"). Specifically, in its decision in the Tadic case, the Tribunal's
Appellate Chamber determined that two U.N. Resolutions, Resolutions 2444 (Respect for
Human Rights in Armed Conflicts)( 25 ) and 2675 (Basic
Principles for the Protection of Civilian Populations in Armed Conflicts)( 26 ) were "declaratory of the principles of customary international
law regarding the protection of civilian populations and property in armed conflicts of
any kind."( 27 )
40. These resolutions prohibit, inter alia, the launching of
attacks against the civilian population and require the parties to an armed conflict, at
all times, to make a distinction between members of the civilian population and persons
actively taking part in the hostilities and to direct their attacks only against the
latter and, inferentially, other legitimate military objectives. In order to spare
civilians from the effects of hostilities, other customary law principles require the
attacking party to take precautions so as to avoid or minimize loss of civilian life or
damage to civilian property incidental or collateral to attacks on legitimate military
41. The immunity of the civilian population and individual civilians
from direct attack is also codified in certain mandatory conventional norms applicable to
the internal hostilities in Colombia. Specifically, common Article 3 expressly prohibits
in all circumstances "violence to life and person" against persons who "do
not or no longer actively participate in hostilities." The International Court of
Justice has declared that common Article 3 reflects "elemental considerations of
humanity."( 28 )
42. Article 13 of Protocol II, which merely elaborates and strengthens
common Article 3's basic rules, also enshrines the principle of civilian immunity as
1. The civilian population and individual civilians
shall enjoy general protection against the danger arising from military operations. To
give effect to this protection, the following rules shall be observed in all
2. The civilian population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of violence, the primary purpose of
which is to spread terror among the civilian population, are prohibited.
3. Civilians shall enjoy the protection afford by this Part, unless
and for such time as they take a direct part in hostilities.
The third provision of this article makes clear that civilian
immunity imposes a corollary duty on the part of civilians to refrain from directly
participating in hostilities by not becoming combatants.
c. Standards for Distinguishing Civilians and
43. In order to implement these customary law principles, standards are
needed for differentiating civilians from combatants in internal armed conflicts. In this
regard, common Article 3 does not mention the word "civilians." While Article 13
of Protocol II refers to "individual civilians" and "civilian
population," it also fails to define these terms.
44. Given these omissions, the Commission must necessarily look to
definitional standards in other humanitarian law instruments for authoritative guidance in
making the critical distinction between civilians and combatants. Many of the rules in
Protocol I, which applies only to international armed conflicts, are particularly useful
referents for interpreting the substantive content of similar, but less detailed,
provisions in Protocol II and common Article 3.
45. In this connection, Article 50 of Protocol I defines the term
"civilian population" as comprising "all persons who are civilians"
and defines "a civilian" negatively as anyone who is not a member of the armed
forces or of an organized group of a party to the conflict. These definitions are relevant
for distinguishing civilians from combatants in conflicts governed by common Article 3 and
46. Also, unlike Article 43 of Protocol I, neither common Article 3 nor
Article 13 of Protocol II defines the term "combatants." Protocol II, however,
contains the basic elements of the concept of armed forces in its allusion to the
"armed forces of the High Contracting party" and to "dissident armed forces
or other organized armed groups . . . under responsible command." The authors of one
of the authoritative treatises on the Protocols( 29 )
state that "inferentially these terms recognize the essential conditions prescribed
under art. 43 of Protocol I: that the armed forces be linked to one of the parties to the
conflict; that they be organized; and that they be under responsible command."( 30 ) They significantly conclude that "[i]t thus
follows that civilians are all persons who are not members of organizations meeting these
qualifications."( 31 ) Accordingly, the civilian
population comprises all other persons who do not actively participate in the hostilities,
which means participating in an attack that is intended to cause physical harm to enemy
personnel or objects.
d. Protection for Civilians Against Direct Attack
47. The Commission is extremely concerned, based on detailed and
concrete information that it received before, during and after its most recent on-site
visit to Colombia, that the deliberate targeting of civilians has become a routine, if not
systematic, tactic employed by all the parties to the conflict in Colombia in varying
degrees. The information received by the Commission suggests that elements of the State's
security forces, key paramilitary groups and some CONVIVIRs regard civilians, who live or
lived in territory presently or formerly controlled by dissident armed groups or whom they
suspect are sympathetic to these dissident groups' causes, as legitimate military targets
and, as such, have attacked them.
48. The Colombian Army has made clear that it includes in its count of
guerrilla forces many individuals who should be treated as civilians pursuant to
international humanitarian law. The Office of the United Nations High Commissioner for
Human Rights reported that members of the XX Brigade (the Army's intelligence unit which
has now been dismantled) informed that Office that 85% of persons treated as subversives
take part only in the so-called "political war" and have not taken up arms.( 32 ) Elements of the Army have expressed that this
"political war" is carried out by members of non-governmental human rights
organizations, labor unions and leftist political parties. For example, General Rito Alejo
del Rio, previously commander of the XVII Brigade and currently commander of the XIII
Brigade in Bogotá, presented a report to the Office of the Regional Prosecutor for
Medellín in which he stated:
49. As is known, the subversion includes an armed branch and a
political branch, which includes all of the left and is supported by different bodies
which the subversion controls, especially in their areas of influence such as human rights
offices which, in turn, receive support from national and international non-governmental
organizations.( 33 )
50. In a statement published by the United Auto-Defense Groups of
Colombia (Autodefensas Unidas de Colombia - "AUC") in June of 1997, this
organization explicitly states that it considers many civilians to be legitimate military
targets, as follows:
[T]his is a war of movements which, as such, requires
a close relationship between the active groups and the civilian population, to the point
that it may be said that all of the inhabitants of a region dominated by any of the armed
groups, are potentially combatants. They may well be combatants even in their condition as
active sympathizers, who do not take part directly in the conflict but who assume the
decisive responsibility of transmitting orders and information, supplying means of
communication, providing supplies of all types, infiltrating the enemy, gathering funds,
carrying out political activities, etc..., and serving, also, as a connection between the
active groups and the population. Also falling into this category are passive sympathizers
who take on the task of seeing nothing, hearing nothing and, especially, knowing nothing.
The conduct of these persons is motivated by fear, by psychological pressure, by tricks,
by convenience or by unconfessed and undeclared sympathy. These unconfessed and undeclared
sympathies especially affect those civilian sympathizers who dedicate themselves to
commercial activities and who provide supplies (medicine, food, shoes, personal hygiene
products, underclothing, personal supplies, etc...) and who voluntarily subsidize those
costs which could be referred to as "petty cash" expenses.( 34 )
51. For their part, the FARC, the ELN and their allied groups have
attacked, executed and abducted or taken hostage government officials, including local
mayors and council members, and other civilians whom they believe are part of the State's
"repressive" apparatus or are otherwise dangerous to the security of their
combatants and sympathizers. Thus, for example, the ELN has admitted that it carries out
"political detentions of persons who have been implicated in acts of administrative
corruption or who have taken part in the dirty war as promoters of political groups
[referring to the paramilitaries]."( 35 ) Given
the practice of the ELN, it must be assumed that the organization applies an extremely
broad definition to the term "promoters of the paramilitaries," including all
those individuals believed to have some connection to paramilitary groups, including
family members of paramilitary group members. The ELN states that the persons it detains
are subjected to "popular revolutionary trials" where they are convicted or
52. In each of these cases, the responsible parties have
erroneously equated the vocations and/or the non-hostile activities of their victims with
actual participation in hostilities, thereby justifying attacks against them. Acceptance
of such claims for attacking these and like civilians would not only obliterate any
meaningful distinction between civilians and combatants, but could also lead to total
unregulated warfare in Colombia.
53. The Commission believes, therefore, that it is necessary to clarify
the distinction between "direct" or "active" and "indirect"
participation by civilians in hostilities in order to identify those limited situations
where it is not unlawful to attack civilians. It is generally understood in humanitarian
law that the phrase "direct participation in hostilities" means acts which, by
their nature or purpose, are intended to cause actual harm to enemy personnel and
material. Such participation also suggests a "direct causal relationship between the
activity engaged in and harm done to the enemy at the time and place where the activity
takes place."( 37 )
54. As a practical matter, a civilian directly or actively participates
in hostilities when he, whether singly or as a member of a group, assumes the role of a
combatant.( 38 ) Such civilians present an immediate
threat of harm to the adversary when they prepare for, participate in, and return from
combat. As such, they become subject to direct attack. Further, by virtue of their hostile
acts, such civilians lose the benefits pertaining to peaceable civilians of precautions in
attack and against the effects of indiscriminate or disproportionate attacks.
55. It is important to understand that while these persons forfeit
their immunity from direct attack while participating in hostilities, they, nonetheless,
retain their status as civilians. Unlike ordinary combatants, once they cease their
hostile acts, they can no longer be attacked, although they may be tried and punished for
all their belligerent acts.
56. In contrast, civilians whose activities merely support the adverse
party's war or military effort or otherwise only indirectly participate in hostilities
cannot on these grounds alone be considered combatants. This is because indirect
participation, such as selling goods to one or more of the armed parties, expressing
sympathy for the cause of one of the parties or, even more clearly, failing to act to
prevent an incursion by one of the armed parties, does not involve acts of violence which
pose an immediate threat of actual harm to the adverse party.( 39 ) The New Rules confirms this view by noting that "[c]ivilians who
support the armed forces (or armed groups) by supplying labor, transporting supplies,
serving as messengers or disseminating propaganda may not be subject to direct
individualized attack, but they remain amenable to domestic legislation against giving aid
and comfort to domestic enemies."( 40 ) Clearly,
persons who exercise their right to vote or to seek or hold elective office also cannot be
regarded as committing, directly or indirectly, acts hostile to a party to any armed
57. It is important to recognize that this critical distinction between
direct and indirect participation in hostilities by civilians applies not only to
conventional warfare, but also to the kind of guerrilla warfare that basically
characterizes the hostilities in Colombia. The parties to the armed conflict in Colombia
must therefore, at all times, respect those peaceable civilians who do not or have ceased
to directly participate in the armed conflict.
58. In addition to its concern regarding the illegitimate targeting of
civilians, the Commission also is deeply concerned that certain individuals, particularly
members of paramilitary groups and the so-called CONVIVIR groups, are directly
participating in hostilities as combatants despite their presumptive civilian status. As
noted above, civilians have a duty to refrain from directly participating in hostilities
by not becoming combatants.
59. As paramilitary groups are now patently illegal under Colombian
law, their members cannot plausibly claim to have been duly authorized by the State to
directly participate in the hostilities on its behalf. Indeed, the highest echelons of the
State's security forces globally deny any links with and disclaim responsibility for the
actions of these groups.
60. Yet, paramilitary groups have operated for years throughout vast
areas of national territory. Many of these groups, especially those associated with the
Castaño and Carranza families, have the basic characteristics of militias -- they are
highly organized, have a command structure, employ weapons offensively, and are highly
mobile. In addition, they appear to be very well financed. These groups have engaged with
increasing frequency in military operations against the FARC, ELN and other dissident
forces. In fact, in certain areas of the country, they have been far more aggressive in
rooting out and combating the guerrillas than have the State's security forces.
Paramilitary forces have also been responsible for attacks whose primary purpose has been
to kill, terrorize and/or force the internal displacement of civilians, rather than to
destroy or neutralize legitimate military targets.
61. The Commission notes that when they assume the role of combatants,
members of paramilitary groups clearly lose their protection against direct attack until
such time as they cease all their hostile acts against the adversary. However, when the
direct participation of such persons in hostilities becomes their principal daily
activity, the question arises as to whether they may have thereby divested themselves of
their civilian status and effectively become combatants subject to direct attack to the
same extent as members of regular armed forces. The Commission notes later in this Chapter
that certain of the paramilitary groups, particularly the Peasant Self-Defense Groups of
Córdoba and Urabá ("ACCU"), are understood to be parties to the armed
conflict. As a result, their members are considered to be combatants rather than
civilians. In this connection, it is critical to understand that no one, during
hostilities, can have the status of a civilian and a combatant at the same time. Nor does
humanitarian law recognize the right of any person to alternate at will or on demand
between civilian and combatant status.
62. The CONVIVIR are armed civilian organizations which are legal under
domestic law. During its visit to Colombia, the Commission met with members of various
CONVIVIRs from the Department of Antioquia and from Villavicencio, Department of Meta.
These individuals clearly indicated that they had participated in military operations
against dissident armed groups, such as searching out guerrilla fighters. One CONVIVIR
member declared to the Commission, in Medellín, that he believed that he could provide a
force of 10,000 men by the following day if the Army asked him to provide such assistance
for an operation to be carried out urgently. By engaging in military operations, the
members of the CONVIVIR abuse their status as civilians. As a result, at least during the
time that they directly engage in hostilities, they lose their immunity from attack. Since
CONVIVIRs are, in principle, lawful organizations under Colombian law, the direct
participation in hostilities of even some of their members is particularly troubling,
since it blurs the distinction between civilians and combatants and, thereby, degrades the
protection of the civilian population from the effects of hostilities. This problem and
other issues relating to the CONVIVIR will be discussed in the section relating to those
entities which follows later in this Chapter.
63. Another problematical issue regarding the distinctions which must
be made between civilians and combatants concerns some of the activities of Colombia's
National Police force. The New Rules state that "the status of police is generally
that of civilians."( 41 ) Thus, the performance
of normal law enforcement activities by members of a civilian police force during
situations of internal hostilities cannot be regarded, in principle, as hostile acts
posing an immediate threat of harm to the State's armed opponents. If the police should
clash with guerrillas while discharging these functions, they have a right to defend
themselves, as well as the lives and property of others. Such acts are not incompatible
with their status as civilians.
64. Under Colombia's Constitution, the nation's police force is
formally subordinated to the Minister of Defense and, together with the Military Forces,
constitute the country's public security forces. This institutional arrangement does not,
as such, violate any rule of humanitarian law, although the Commission has repeatedly
suggested, as a human rights matter, that police forces should be clearly civilian in
nature, should maintain strict independence from and should not perform the functions of
the armed forces.
65. In situations of international armed conflict, Article 43(3) of
Protocol I affirms the right of a party to the conflict to incorporate armed law
enforcement personnel into its armed forces for purposes of reinforcement in combating the
adversary.( 42 ) Like other provisions in Protocol I
applicable to international hostilities, this article provides practical guidance for
dealing with analogous situations in internal conflicts. This article requires, however,
that notice of such action be given to the adverse party. The ICRC Commentary suggests
that such notice is "so there is no confusion" on the part of the adverse party.( 43 ) Presumably, this allusion to "confusion"
does not refer so much to the act of incorporating police personnel into the armed forces,
as it does to the effect of such an act on the status of the persons affected.
66. The Commission is aware that Colombia has not formally incorporated
its National Police into its Military Forces. However, the Commission has verified that
members of the police have frequently participated, either alone or with the Military
Forces, in military operations against armed dissident groups and in other
counterinsurgency activities. By directly engaging in hostilities, these persons, at a
minimum, forfeit their immunity against direct individualized attack during such time as
they participate in military operations. The situation might be different in the case of
those police who assume the role of a combatant on essentially a full-time basis. By
virtue of the number and frequency of their hostile acts, these persons, at best,
jeopardize and, at worst, forfeit their status as civilians and run the clear risk that
they will be seen as full-time combatants by the adverse party.
e. Designation of Civilian Objects
67. The definition of the term "civilian objects" in Article
52(1) of Protocol I should be accorded similar meaning for purposes of Protocol II.
Article 52(1) negatively defines civilian objects as all objects that are not military
objectives as defined in paragraph 2 of that same article, which sets forth the twofold
test for military objectives. Therefore, Article 52 implicitly characterizes all objects
as civilian, unless they make an effective contribution to the enemy's military action and
unless destroying, capturing, or neutralizing them offers a definite military advantage in
68. In doubtful situations, Article 52 creates a presumption that
objects normally dedicated to civilian use, such as churches, houses or schools, are not
employed to contribute effectively to military action. This presumption attaches only to
objects that ordinarily have no significant military use or purpose. This presumption,
therefore, does not apply to objects that have "dual uses or functions." Such
objects serve the needs of the civilian population and also effectively contribute to the
adversary's military actions. The New Rules indicates that "the test as to such
objects - unaffected by presumptions on either side of the equation - remains the
two-pronged test [of military objectives] established in para. 2 [of Article 52]."( 44 )
f. Designation of Military Objectives
69. The definition of the term "military objective" in
Protocol I inferentially apply to that term's usage in Protocol II.( 45 ) Article 52(2) of Protocol I defines military objectives only as they
relate to objects or targets, rather than to personnel.( 46
) To constitute a legitimate military objective, the object or target selected, by its
nature, location, purpose, or use, must contribute effectively to the enemy's military
capability or activity, and its total or partial destruction or neutralization must offer
a definite military advantage in the circumstances ruling at the time.
70. The New Rules provides that "an object generally used for
civilian purposes, such as a dwelling, a bus, a fleet of taxicabs, or a civilian airfield
or railroad siding, can become a military objective if its location or use meets both of
the criteria set forth in Article 52."( 47 ) For
example, a defending party may organize an entire town or village as part of its defensive
position, thereby making it a "defended locality."( 48 ) The town or village thus constitutes a legitimate target. The
civilians remaining in that locale, however, would retain the benefits of the rule of
proportionality as it applies to collateral civilian casualties.( 49 )
71. For an attack to be permissible, not only must a military objective
effectively contribute to the enemy's military action, but its destruction, neutralization
or capture must also offer a "definite military advantage" to the attacking
party in the "circumstances ruling at the time."( 50 ) The ICRC Commentary suggests that the concept "definite military
advantage in circumstances ruling at the time" means "it is not legitimate to
launch an attack which only offers potential or indeterminate advantages.( 51 )
72. A leading humanitarian law scholar, who was present at the drafting
of Protocol I, endorses this interpretation:
73. The "definite military advantage" required under the
definition must be present "in the circumstance ruling at the time." This
element in the definition effectively precludes military commanders from relying
exclusively on abstract categorizations in the determination of whether specific objects
constitute military objectives ("a bridge is a military objective; an object located
in the zone of combat is a military objective," etc.). Instead, they will have to
determine whether, say, the destruction of a particular bridge, which would have been
militarily important yesterday, does, in the circumstances ruling today, still offer a
"definite military advantage": if not, the bridge no longer constitutes a
military objective, and, thus, may not be destroyed.( 52
g. Protection of Civilians and Civilian Objects from
Indiscriminate Attacks in Internal Hostilities
74. Any doubt concerning the protection of civilians from
indiscriminate attack in internal hostilities has been removed by the Yugoslav Tribunal in
its Appellate Chamber decision in the Tadic case. In that decision, the Tribunal stated
that the general essence of basic principles and rules governing restrictions on means and
methods of warfare in international hostilities had become applicable by State practice to
internal armed conflicts. The court specifically identified these rules as covering "
. . . such areas as protection of civilians from hostilities, in particular from
indiscriminate attack, protection of civilian objects, in particular cultural property,
protection of all those who do not or no longer take active part in hostilities, as well
as prohibitions of means of warfare proscribed in international armed conflicts and ban of
certain methods of conducting hostilities."( 53 )
Regarding the last point, the Court emphatically observed:
Indeed elementary considerations of humanity and
common sense make it preposterous that use by states of weapons prohibited in armed
conflicts between themselves be allowed when states try to put down rebellion by their own
nationals on their own territory. What is inhuman and consequently proscribed in
international wars cannot but be inhuman and inadmissible in civil strife.( 54 )
75. Inasmuch as certain provisions of Protocol I codify for the first
time customary law rules designed to protect civilians and civilian objects from
indiscriminate or disproportionate attacks, these provisions provide authoritative
guidance for interpreting the extent of similar protection for these persons and objects
during all internal armed conflicts. For example, Article 51(4) of Protocol I expressly
protects the civilian population from indiscriminate or disproportionate attacks. The
article prohibits attacks that are not directed at specific military objectives or that
employ a method or means of combat that a party cannot direct at a specific military
objective. Thus, the article prohibits the parties from attacking military objectives and
civilians or civilian objects without distinction.( 55
76. The use of land mines and like devices can also constitute an
indiscriminate attack. Such weapons can never be lawfully directed against peaceable
civilians. When laid unrecorded, buried, unmarked or with no capability to self-destruct
within a reasonable time, such weapons are effectively "blind" since they
cannot, with any reasonable assurance, be directed only against a military target. The use
of these weapons in such circumstances is indiscriminate and illegal.
h. The Rule of Proportionality
77. The legitimacy of a military target does not provide unlimited
license to attack it. The rule of proportionality prohibits "[a]n attack which may be
expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated."( 56
78. This rule of proportionality imposes "an additional limitation
on the discretion of combatants in deciding whether an object is a military objective
under para. 2 of Article 52."( 57 ) Should an
attack be expected to cause incidental civilian casualties or damage, the requirement of
an anticipated "definite" military advantage under Article 52 is elevated to the
more restrictive standard of a "concrete" and "direct" military
advantage in Article 51(5)(b).( 58 )
79. Another aspect of the proportionality equation requires that
foreseeable injury to civilians and damage to civilian objects not be disproportionate or
"excessive" to the anticipated "concrete and direct military
advantage." The ICRC Commentary furnishes examples of what may constitute
"excessive" damage. For instance, "the presence of a soldier on leave
obviously cannot justify the destruction of a village," yet "if the destruction
of a bridge is of paramount importance for the occupation or non-occupation of a strategic
zone, it is understood that some houses may be hit, but not that a whole urban area be
leveled."( 59 )
80. However, the ICRC Commentary makes it clear that extensive civilian
casualties can never be justified.
The idea has been put forward that even if they are
very high, civilian losses and damages may be justified if the military advantage at stake
is of great importance. This idea is contrary to the fundamental rules of the Protocol. .
The Protocol does not provide any justification for attacks which cause extensive civilian
losses and damages. Incidental losses and damages should never be extensive.(
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( 25 ) U.N.
Comm., 23rd Sess., U.N. Doc. A/C.3/SR.1634 (1968).
26 ) U.N.
25th Sess., Supp. No. 28 U.N. Doc.A/8028 (1970).
27 ) The Prosecutor
v. Dusko Tadic, No. IT-94-1-AR72, slip op., 2 October 1995, par. 112 [hereinafter Tadic
28 ) Nicaragua v.
United States, 1986 I.C.J. 14, 114 par. 220 (Merits Judgement of June 27).
29 ) New Rules for
Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva
Conventions of 1949 (1982) [hereinafter New Rules].
30 ) Id. at
31 ) Id.
32 ) See
Report of the United Nations High Commissioner for Human Rights, EC/CN.4/1998/16, March 9,
1998, par. 112.
33 ) See id.
34 ) United
Auto-Defense Groups of Colombia, Naturaleza Politico-Militar del Movimiento, June 26,
35 ) Interview with
Commander Manuel Pérez Martínez, The ELN and the Current Juncture, Actualidad Elena on
the Internet, www.voces.org/elena/dere.htm.
36 ) See id.
International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June
1972 to the Geneva Conventions of 12 August 1949 (Yves Sandor et al. Eds., 1987), at 516
[hereinafter ICRC Commentary].
38 ) A civilian
directly participates in hostilities when he is carrying or actually makes use of his
weapon, as well as in situations in which he undertakes hostile acts without using a
39 ) See New
Rules, at 303.
40 ) Id.
41 ) New Rules,
42 ) This article
establishes that such incorporation would not constitute a violation of the rules of war.
However, if the police continue to carry out their normal functions as guarantors of the
public order, criminal investigators, etc..., such incorporation would create a situation
with a propensity to result in human rights violations. The Commission has consistently
expressed concern regarding the militarization of the police forces in all contexts,
including internal armed conflicts.
43 ) ICRC
Commentary, at 1683.
44 ) New Rules, at
326. These objects typically include bridges, power plants, chemical and other factories,
fuel storage depots, railroad and other transportation facilities and systems, vehicles,
and communications facilities. The United States Air Force Pamphlet openly concedes
that "controversy exists over whether, and the circumstances under which, . . .
objects, such as civilian transportation and communications systems, dams and dykes can be
classified properly as military objectives." U.S. Dept. of the Air Force,
International Law - the Conduct of Armed Conflict and Air Operations, AfP 110-31, par.
5-9, sec. 5-3(b)(2).
45 ) See New
Rules, at 672 (noting that the ICRC has applied definitions of Protocol I to the terms of
46 ) See
Protocol I, Art. 52(2).
47 ) New Rules, at
48 ) Id. at
49 ) See id.
50 ) See
Protocol I, Art. 52(2); ICRC Commentary, at 635 (noting that both definitional elements
must be simultaneously present for a legitimate military objective to exist).
51 ) ICRC
Commentary, at 636.
52 ) Id.
53 ) Tadic
Case, par. 127 (emphasis added).
54 ) Id.
55 ) Article
51(5)(a) characterizes an attack as indiscriminate when it treats a number of clearly
separate and distinct military objectives located in a city, town, village, or other area
containing a concentration of civilians or civilian objects as a single military
objective. An assault on a single military objective within that locale, on the other
hand, would not constitute an unlawful indiscriminate attack. An attack on a populated
area in order to destroy several military objectives that a party could have attacked
separately, however, is indiscriminate.
56 ) New Rules, at
57 ) Id. at
58 ) ICRC
Commentary, at 684. The ICRC Commentary states that, "[t]he expression concrete
and direct was intended to show that the advantage concerned should be substantial
and relatively close, and that the advantages which are hardly perceptible and those which
would only appear in the long term should be disregarded."
59 ) ICRC
Commentary, pars. 2213-14 at 684. The ICRC Commentary further states:
Of course, the disproportion between losses and damages caused and
the military advantages anticipated raises a delicate problem; in some situations there
will be no room for doubt, while in other situations there may be reason for hesitation.
In such situations the interests of the civilian population should prevail.
Id., par. 1979 at 626.
60 ) Id.,
par. 1980 at 626.
61 ) See
Comisión Colombiana de Juristas, Colombia, Derechos Humanos y Derechos Humanitario: 1996,
at 5-6 [hereinafter 1996 Comisión Colombiana Report]. These statistics include the
killing of members of "marginal groups," such as indigents, street children and
prostitutes. Unlike the statistics regarding violent deaths carried out by State security
forces and paramilitary groups for socio-political reasons, the statistics for armed
dissident groups do not include a category for forced disappearances in the overall
violent death figure. This apparent inconsistency derives from the fact that, by
definition, only State agents may carry out forced disappearances. In the case of State
action, disappearances are generally included as a separate category which is then
calculated into the overall violent death figures, because most disappearances terminate
in the death of the victim. However, any detention carried out by armed dissident groups
which results in the death or the presumed death of the victim would be counted directly
as a violent death rather than as a disappearance.
62 ) See
Comisión Colombiana de Juristas, Colombia, Derechos Humanos y Derechos Humanitario: 1995,
at 4 [hereinafter 1995 Comisión Colombiana Report].
63 ) See
1996 Comisión Colombiana Report, at 5-6.
64 ) See
CINEP and Justicia y Paz, Noche y Niebla Balance Sheet 1997, at 4 [hereinafter Balance
65 ) See
1995 Comisión Colombiana Report, at 4.
66 ) See
1996 Comisión Colombiana Report, at 6.
67 ) Republic of
Colombia, National Police, Criminality, p. 391.
68 ) See
Constitutional Court, Decision No. XXXXX, September, 1997; Constitutional Court, Decision
No. C-574, October 28, 1992.
69 ) See
1996 Comisión Colombiana Report, at 58. These statistics do not include massacres of
members of "marginal groups," such as street children and prostitutes.
70 ) See
Balance Sheet, at 6.