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 targets.

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 follows:

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 circumstances.

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 Combatants

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 Protocol II.

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 acquitted.(36 )

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 conflict.

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 the circumstances.

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.( 60 )

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