القاعدة ذات الصلة
Colombia
Practice Relating to Rule 158. Prosecution of War Crimes
Colombia’s Basic Military Manual (1995) provides: “War crimes shall be repudiated and sanctioned by the international community, by States through their legislation and by civil society.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 31.
The manual specifies that, before conflicts, States are obliged “to establish in national legislation, especially in criminal law, rules which define and punish crimes … against IHL”. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 27.
The manual further states: “Violations committed by officials [of the State or] … soldiers … shall be sanctioned in compliance with the disciplinary, administrative and criminal legislation of the State.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 36.
According to the manual, this is also the case for violations committed by members of organized armed groups. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 37.
Colombia’s Penal Code (2000), under the heading “Crimes against persons and objects protected by international humanitarian law”, contains a list of provisions concerning the punishment of specified crimes committed “in the event and during an armed conflict”. The persons protected are: civilians, persons not taking part in the hostilities and civilians in the power of the adverse party, wounded, sick and shipwrecked placed hors de combat, combatants who have laid down their arms because of capture, surrender or any similar reason, persons considered as stateless or refugees before the beginning of the conflict, and the persons protected under the 1949 Geneva Conventions and the 1977 Additional Protocols I and II. 
Colombia, Penal Code, 2000, Articles 135–164.
Colombia’s Criminal Procedure Code (2004), as amended in 2009, states:
The principle of discretionary prosecution shall not be applicable to investigations or indictments related to grave breaches of international humanitarian law, crimes against humanity, war crimes or genocide[.] 
Colombia, Criminal Procedure Code, 2004, as amended in 2009, Article 324(3).
The Code also states:
The principle of discretionary prosecution is the constitutional faculty allowing the Attorney General of the Nation to suspend, interrupt or waive a criminal prosecution for reasons of criminal policy despite the existence of sufficient grounds to proceed with the prosecution[.] 
Colombia, Criminal Procedure Code, 2004, as amended in 2009, Article 323.
Colombia’s Justice and Peace Law (2005) states:
ARTICLE 2. SCOPE, INTERPRETATION AND APPLICATION OF THE LAW. This law regulates the investigation, prosecution, punishment and judicial guarantees of individuals connected to organized armed groups outside the law who have been perpetrators of or participants in criminal offences committed during and on the occasion of their membership in these groups, and who have decided to demobilize and make a decisive contribution to national reconciliation.
ARTICLE 6. RIGHT TO JUSTICE. According to the legal provisions in force, the State must undertake an effective investigation to identify, arrest and punish those persons responsible for offences committed by members of armed groups outside the law; as well as to ensure access by victims of these offences to effective remedies for the reparation of the harm inflicted on them. 
Colombia, Justice and Peace Law, 2005, Articles 2 and 6.
The Law also states:
This law aims at facilitating the peace process and the individual or collective reintegration into civilian life of members of armed groups outside the law, while guaranteeing the victims’ rights to truth, justice and reparation.
Organized armed groups outside the law are understood to mean guerilla or self-defence groups, or a significant and integral part of these groups, such as blocs, fronts or other modalities of these organizations, as addressed in Law 728 of 2002 [which amends, inter alia, Article 8 of the 1997 Law on Judicial Cooperation to read, in its paragraph 1: “In accordance with international humanitarian law, and for the purposes of this law, armed groups outside the law are understood to mean those which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations.”]. 
Colombia, Justice and Peace Law, 2005, Article 1.
Colombia’s Code on Children and Adolescents (2006) states:
The Principle of Discretionary Prosecution in proceedings regarding adolescents who were participants of crimes committed by armed groups outside the law. The Office of the Attorney General may renounce a criminal prosecution in those cases where adolescents, under any conditions, were part of armed groups outside of the law, or participated directly or indirectly in the hostilities, in armed actions or in crimes committed by armed groups outside of the law when:
(1) It is established that the adolescent’s decision was based on the social, economic and cultural situation of his or her environment, which led him or her to deem as more valuable the membership of an armed group outside the law.
(2) It is established that the situation of social, economic and cultural marginalization did not give alternatives for the adolescent to develop his or her personality.
(3) It is established that the adolescent was not in the position to direct his or her efforts towards discovering other forms of social participation.
(4) [The adolescent’s participation was] due to force, threats, coercion and constraint.
Paragraph. The principle of discretionary prosecution shall not be applied to acts which might constitute grave breaches of international humanitarian law, crimes against humanity or genocide pursuant to the [1998] Rome Statute. 
Colombia, Code on Children and Adolescents, 2006, Article 175.
[emphasis in original]
The Code also states:
For all purposes under this law, the right-holders are all persons under 18 years of age. Without prejudice to article 34 of the Civil Code, children are understood to be persons under 12 years of age, and adolescents persons between 12 and 18 years of age. 
Colombia, Code on Children and Adolescents, 2006, Article 3.
Colombia’s Law Addressing Violence and Discrimination against Women (2008) states:
The National Government:
8. [Will] adopt measures to investigate or punish members of the police, armed forces, security forces and other forces who undertake acts of violence against girls and women in situations of conflict caused by the presence of armed actors. 
Colombia, Law Addressing Violence and Discrimination against Women, 2008, Article 9(8).
In 2003, in the Constitutional Case No. C-004/03, the Plenary Chamber of Colombia’s Constitutional Court found that “the State [has a] duty to investigate and punish violations of human rights and grave breaches of international humanitarian law”. 
Colombia, Constitutional Court, Constitutional Case No. C-004/03, Judgment of 20 January 2003, § 27.
In 2005, in the Constitutional Case No. C-575/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Article 6 [of Law 975 of 2005], when defining the right to justice, affirms that a State has the duty to carry out an effective investigation that is conducive to the identification, capture and punishment of persons responsible for crimes committed by members of unlawful armed groups. 
Colombia, Constitutional Court, Constitutional Case No. C-575/05, Judgment of 25 July 2005, p. 239.
In 2005, in the Constitutional Case No. C-797/05, the Plenary Chamber of Colombia’s Constitutional Court held:
[T]he State [has an] obligation … to seriously investigate punishable conduct, an obligation proportional to the magnitude of the individual and social harm caused by such punishable conduct.
Consequently, when it comes to violations of human rights and grave breaches of international humanitarian law, the obligation to seriously investigate and punish those responsible and to restore, to the extent possible, the victims’ rights, becomes particularly important so that a State’s omission produces a situation of impunity that endangers not only the domestic legal order, but also affects its international equivalent, given the importance of the legal values at stake.  
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 20.
In 2006, in the Constitutional Case No. C-370/06, the Plenary Chamber of Colombia’s Constitutional Court stated: “The human rights and international humanitarian law treaties do not specifically recognize the rights to peace, truth, justice and reparation. But they do refer to … the obligation to investigate violations of human rights and international humanitarian law”. 
Colombia, Constitutional Court, Constitutional Case No. C-370/06, Judgment of 18 May 2006, § 4.3.1.
In 2007, in the Constitutional Case No. C-095/07, the Criminal Chamber of Colombia’s Constitutional Court stated that “various treaties on human rights and international humanitarian law mention … the [State’s] duty to investigate violations of human rights and international humanitarian law in order to let the truth be known”. 
Colombia, Constitutional Court, Constitutional Case No. C-095/07, Judgment of 14 February 2007, pp. 34–35.
(footnote in original omitted)
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
At the international level, the State obligation to respect and ensure respect for international humanitarian law is found in Article 1 common to the 1949 Geneva Conventions and has acquired customary status.
[T]he general obligation to respect and ensure respect for international humanitarian law is the foundation for a number of more specific duties such as … the duty to investigate, prosecute, sanction … war crimes, crimes against humanity and genocide committed during internal armed conflicts, a customary duty binding States because it is States through their legitimately established authorities who must effectively determine individual criminal responsibility for the commission of grave breaches of international humanitarian law. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 61.
In 2008, in the Constitutional Case No. C-1156/08, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of the Agreement on the Privileges and Immunities of the International Criminal Court (ICC) and of the corresponding domestic law approving it. Regarding Colombia’s commitment to the fight against impunity for serious violations of human rights and international humanitarian law, the Court stated:
Colombia is part of the international consensus regarding the fight against impunity of serious violations of human rights and international humanitarian law. Punishing such breaches is in the interest of the entire community of nations, as they constitute core delicta iuris gentium.
This led the Colombian State to sign several international instruments on the matter, in pursuit of respect and observance of human dignity, including within the State. 
Colombia, Constitutional Court, Constitutional Case No. C-1156/08, Judgment, 26 November 2008, p. 61.
[footnote in original omitted]
In 2009, in the Constitutional Case No. C-240/09, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of article 14 of the Law on Judicial Cooperation (1997) and article 162 of the Penal Code (2000), which concern the recruitment of children and their forced participation in hostilities. The Court stated:
4.2.3. … [I]t can be concluded that in accordance with the 1949 Geneva Conventions and their [1977] Additional Protocols ratified by Colombia, the recruitment of children below 15 years of age and their participation in armed conflict is a conduct prohibited by IHL.
The States Parties, in light of the above, assume the commitment to take all legislative measures as necessary to punish those persons responsible for grave breaches of these Conventions. Additionally, States have the obligation to prosecute those persons suspected of committing grave breaches of these treaties or to transfer them to be prosecuted in another State. In other words, the perpetrators of grave breaches – war criminals – must always be prosecuted, and this responsibility falls to the States.
7.3.2. …
Regarding war crimes, States have clearly committed to uphold the duty to combat them, which requires States to diligently incorporate repressive provisions into their domestic legislation, investigate these crimes, exhaust the necessary means for apprehending the perpetrators and prosecute them. 
Colombia, Constitutional Court, Constitutional Case No. C-240/09, Judgment, 1 April 2009, §§ 4.2.3 and 7.3.2.
[footnotes in original omitted; emphasis in original]
In 2010, in the Fuentes Montaño case, the Criminal Appeals Chamber of Colombia’s Supreme Court of Justice revised the first and second instance judgments to qualify as murder of protected persons the crime of which the defendant had been convicted. Regarding the incorporation into domestic law of certain war crimes, the Court stated:
In the case of Colombia, the incorporation of criminal provisions specifically directed at protecting persons and objects in conformity with IHL is intended not only to ensure compliance with the commitments made by the Colombian State at the international level through the [1949] Geneva Conventions and their two [1977] Additional Protocols but also to address the urgent need to establish a specific legal framework to criminalize the grave assaults perpetrated on the civilian population in the context of the non-international armed conflict that has been taking place in the country for several decades. This was set out in the explanatory notes accompanying Draft Law No. 40 of 1998, which was later approved and became the current Penal Code of 2000:
… In the situation of internal armed conflict in Colombia, much of the conduct violating or threatening human rights also constitutes breaches of international humanitarian law. Such conduct consists of actions or omissions by which those who take part directly in the hostilities – the combatants – breach duties and prohibitions imposed by Article 3 common to the four Geneva Conventions and Additional Protocol II. …
The draft law includes a special chapter entitled “Offences against persons and objects protected under international humanitarian law”. This chapter includes several provisions describing and criminalizing those behaviours that constitute the gravest breaches of such international regulations that Colombia has committed to respect and apply. 
Colombia, Supreme Court of Justice, Fuentes Montaño case, Judgment, 27 January 2010, p. 26.
In 2010, in the Constitutional Case No. C-936/10, Colombia’s Constitutional Court stated:
[I]t was decided to include, as beneficiaries of the principle of discretionary prosecution, members of illegal armed groups who had been demobilized in the context of the [2005] Justice and Peace Law and, more generally, in the context of peace negotiations with the National Government. …
It was alleged that the regulation of the principle of discretionary prosecution pursuant to this reform of Law No. 906 of 2004 [Criminal Procedure Code] aimed to prevent its application to crimes related to serious violations of human rights and international humanitarian law, as impunity for such crimes would be unacceptable.
Explicit exclusions [provided in the text of the law]: the principle of discretionary prosecution cannot be applied to investigations or accusations related to the following facts:
- those acts constitutive of grave breaches of international humanitarian law;
- crimes against humanity;
- war crimes;
- genocide; [and]
- wilful conduct against a victim who is under 18 years of age.
… The court highlights that the legislative body has wide powers to establish the grounds upon which the principle of discretionary prosecution can be applied. However, such powers are clearly limited by victims’ rights and the State’s duty to investigate, prosecute and punish those responsible for serious human rights violations and grave breaches of international humanitarian law …
… In this regard the Court observes that item 17 of article 324 of the [2004] Criminal Procedure Code, as amended, establishes two requirements for the application of the principle of discretionary prosecution to a demobilized [member of an illegal armed group] who intends to avail him or herself of such benefit: (i) that he or she clearly demonstrates his or her intent to reintegrate into society; and (ii) that he or she signs a declaration under oath stating that he or she has not committed a crime other than those established in the grounds [for prosecution], namely, those crimes resulting from “membership of a criminal organization”, such as use of illegal uniforms and insignias and the illicit carrying of arms and ammunition.
The Court notes that the requirement for an affidavit by the suspect or accused, stating that he or she has not committed grave crimes, clearly means that the State is foregoing an investigation. [The State is abrogating its responsibility] to punish those crimes, thus leaving it to the will, interest and convenience of the demobilized [member of an armed group]. …
… The grounds for the application of the principle of discretionary prosecution, as set out in item 17, do not even provide for an investigation within the proceedings aimed at ruling out the involvement of the future beneficiary in the commission of crimes under international law. Despite the eloquence of figures demonstrating the systematic and large-scale human rights violations committed by the groups of which the demobilized persons were members, and despite the multiplicity of victims and the actions of the perpetrators through structures with a high degree of organization and division of labour, no genuine investigative strategy is established … The rule does not reflect a genuine political will to investigate, prosecute and punish the perpetrators of or participants in such crimes, or to dismiss the perpetration of or participation in these crimes by the demobilized person.
… Considering the [organized nature of these crimes], the task of investigating and prosecuting cannot be limited to describing the criminal act committed. It must also clarify the links between individual cases and their instrumental nature, as well as identify patterns in the commission of violence, the context of collective action and facilitating practices, and the ideology behind the criminal act and its motivation. …
The investigative strategy to tackle such a criminal phenomenon cannot be reduced to an affidavit by a member of a criminal organization notorious for committing crimes under international law, in which he/she declares not to have committed crimes of this nature. An adequate judicial strategy to address the challenges raised by the multiplicity of crimes and the large number of persons investigated or prosecuted constitutes a fundamental element for satisfying the requirements of truth and justice.
… The legislative decision to substitute an adequate investigative strategy … with the sworn declaration required to be made by the future beneficiary of the waiver of criminal prosecution presents multiple constitutional and criminal policy problems …
First, as previously stated, it involves the State foregoing an investigation of criminal conduct that could have included serious violations of human rights and grave breaches of international humanitarian law, thus clearly contravening international mandates on the matter.
… Finally, the power attributed to the Attorney General to request “collective hearings” for granting the [benefit] of discretionary prosecution is another indication of the lack of a genuine will to investigate offences that might have been committed by demobilized members of an illegal armed organization and their responsibility for these.
… The ethical and normative imperative on States to take a strong stance against impunity for atrocities committed in the past, in order to satisfy the need for justice for victims and society, requires a “speedy, thorough, independent and impartial” investigation of violations of human rights law and international humanitarian law. These requirements are not satisfied by the strategy provided for in item 17 of article 324 of the Penal Code, under which the Attorney General foregoes the investigation not because of the certification that the demobilized person did not commit any of the crimes excluded from the principle of discretionary prosecution (serious breaches of international humanitarian law, crimes against humanity, war crimes, genocide or wilful conduct against a victim who is under 18 years of age), but as the outcome of the legislative decision to substitute the investigation with a statement by the alleged participant/perpetrator.
… Superficial investigations, conducted merely as a formality in order to allow impunity, are contrary to the duty to seriously investigate human rights violations …
… By proceeding in this way, the State breaches its international obligations – derived from both customary and conventional sources – to investigate, prosecute and punish the perpetrators of serious human rights violations, crimes against humanity and war crimes, thus creating a favourable environment for the chronic repetition of such conduct. 
Colombia, Constitutional Court, Constitutional Case No. C-936/10, Judgment, 23 November 2010, pp. 82 and 84–91.
[footnotes in original omitted]
In 2010, in the El Iguano case, the Justice and Peace Chamber of Colombia’s High District Court of Bogotá convicted a member of the paramilitary group Autodefensas Unidas de Colombia (United Self-Defence Forces of Colombia) of several crimes committed against the civilian population. The Court stated:
199. Pursuant to article 214 of the [1991] National Constitution, [the 1949 Geneva Conventions and 1977 Additional Protocols] are part of the so-called “constitutional block” and, therefore, prevail in the domestic order and cannot be limited in a state of exception. This gives rise to the obligation of the Colombian State to “adapt its hierarchically inferior rules of the domestic legal order to the content of international humanitarian law, with the aim of fostering the material fulfilment of these values”. However, if the State does not comply with its duty to criminalize and punish acts that violate international humanitarian law, this does not imply that these acts will remain unpunished. Impunity should not be understood only as an absence of investigation and punishment but also as having an investigation and punishment that do not correspond to the gravity of the crime committed, diminishing its importance at the national and international levels.
213. In conclusion, the 170 deaths, the torture, the acts of terrorism, destruction of protected objects, forced displacement and extortions or arbitrary contributions addressed by this decision constitute grave violations of international humanitarian law. The law of Geneva prohibits this conduct – except for the levies and arbitrary contributions – and obliges the State to prevent, investigate and punish them. 
Colombia, High District Court of Bogotá, El Iguano case, Judgment, 2 December 2010, §§ 199 and 213.
[footnote in original omitted]
In 2010, in the Juancho Dique case, the Criminal Appellate Chamber of Colombia’s Supreme Court of Justice stated:
The earliest experience of this more flexible principle of legality or of its redefinition within the international framework was during the Nuremberg trials …
For its part, the “Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity” state:
1. War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.
2. Every State has the right to try its own nationals for war crimes against humanity.
Thus, it is clear that, regardless of when the war crime was committed, it has to be prosecuted, but at the same time the State where the crime was committed is entitled to investigate it and, if necessary, impose the appropriate sanctions.
In this context of broadening the concept of law, it is important to recall that our country is a party to international conventions which provide for the punishment of international crimes, including grave breaches of international humanitarian law.
Those instruments were incorporated into the domestic legislation of our country, since Law 5 of 1960 approved the four 1949 Geneva Conventions, Law 11 of 1992 approved the [1977] Additional Protocol I and Law 171 of 1994 approved the [1977] Additional Protocol II.
Pursuant to articles 26 and 27 of the Vienna Convention on the Law of the Treaties of 23 May 1969, it is a principle of international law that provisions of domestic law cannot prevail over provisions of a treaty when it comes to relations between States Parties, and that a contracting party cannot invoke its own constitution or domestic legislation to evade its obligations under international law and to comply with the treaties in force.
Therefore, it can be affirmed that it is not possible to refrain from punishing international crimes under the justification of an omission in domestic legislation. This doctrine was built on cases in which it was well-known that the perpetrators exerted influence over the legislators who, owing to intimidation, connivance or simple lack of interest, abstained from incorporating the criminalization of such conduct into domestic legislation. 
Colombia, Supreme Court of Justice, Juancho Dique case, Judgment, 16 December 2010, pp. 28, 30, 31 and 33.
[footnotes in original omitted]
In 2004, in its third periodic report to the Committee on the Rights of the Child, Colombia stated:
[B]reaches of international humanitarian law are now being dealt with by the courts as a result of the hard work and prompt investigations carried out by the Office of the Attorney-General; a total of 184 investigations have been opened into 785 members of illegal armed groups and 463 arrest warrants have been issued. 
Colombia, Third periodic report to the Committee on the Rights of the Child, 24 August 2005, UN Doc. CRC/C/Add.129, submitted 28 June 2004, § 109.
In 2006, Colombia’s National Council for Social and Economic Policy approved the Policy for Combating Impunity for Human Rights Violations and Breaches of International Humanitarian Law by Strengthening the Capacity of the Colombian State for Investigation, Prosecution and Punishment. The Policy states:
This policy … aims to fight impunity by overcoming the obstacles that hinder clarification of cases of human rights violations and breaches of international humanitarian law [and] the punishment of the persons responsible …
… [T]he progress made in strengthening institutions in charge of investigating, prosecuting and punishing human rights violations and breaches of international humanitarian law has not been sufficient in view of the complex situation of impunity for these crimes. The Colombian State is therefore required to have a policy on this matter, along with the respective budget allocations, regardless of particular temporary conditions or changes in the dynamics of key perpetrators. 
Colombia, National Planning Department, National Council for Social and Economic Policy, Policy for Combating Impunity for Human Rights Violations and Breaches of International Humanitarian Law by Strengthening the Capacity of the Colombian State for Investigation, Prosecution and Punishment, CONPES Document No. 3411 of 2006, 6 March 2006, pp. 2 and 7.
[footnote in original omitted]
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
107. As part of the ongoing fulfilment of its obligations in respect of human rights and IHL, the Ministry of Defence issues Directives on control and monitoring containing specific instructions to ensure that these obligations are fulfilled. It recently issued three such Directives. Directive No. 10 of 2007 deals with cases of alleged homicide of protected persons and has three aims:
- To provide all the support necessary for any disciplinary and criminal investigations, requesting action by the competent judicial authorities in order to legally clarify the cases;
110. A second Directive, No. 19 of 2007, was issued to supplement Directive No. 10. It orders commanders of military units to deploy all possible means to ensure that, when deaths in combat occur, the expert inspection is carried out by the permanent judicial police bodies in the area where the deaths occurred. … In the same way, the Directive orders that Armed Forces personnel must facilitate and support the timely conduct of legal inquiries ordered by the competent authorities during the course of investigations into these types of cases. 
Colombia, Ministry of National Defence, Comprehensive Human Rights and IHL Policy, January 2008, §§ 107 and 110.
The Ministry of National Defence also stated:
118. The conduct of military operations within Colombia makes it inevitable that despite the existence of preventive and control measures, collateral damage will occur. Damage to or destruction of property and real estate, and even injuries and deaths amongst civilians, unfortunately arise during the conduct of military operations.
120. The fact that conciliation is being promoted does not in any way rule out pursuing criminal and disciplinary investigations in a particular case. … In the event that conduct which gives rise to damage constitutes a crime or a disciplinary offence, such conduct will be duly investigated and punished. 
Colombia, Ministry of National Defence, Comprehensive Human Rights and IHL Policy, January 2008, §§ 118 and 120.
In 2008, in its fourth periodic report to the Committee against Torture, Colombia stated:
C. Combating impunity for human rights and IHL violators
(a) Policy foundations and achievements
108. In July 2003, the Government signed[,] with the Government of the Netherlands[,] an international cooperation agreement entitled “Bases for a strategy for inter-agency management and coordination of the combat against impunity for human rights and IHL violations”. This agreement, which has so far been implemented, [has] the following two objectives: (i) formulating and implementing a policy for combating impunity; (ii) encouraging and following up on a number of trials for human rights and IHL violations.
109. Accordingly, based on inter-agency collaboration, cooperation with [the] Netherlands and advice by the Office of the High Commissioner for Human Rights (OHCHR) in Colombia, a public policy has been formulated against impunity in cases of human rights and IHL violations with a view to ensuring that, on the basis of a comprehensive conception of the State, every organization involved in investigating, punishing and providing redress for such violations develops a set of activities aimed at strengthening the rule of law.
110. The policy, formally stated in CONPES [National Council for Economic and Social Policy] document No. 3411 of 2006, is based on the premise that Colombia should take comprehensive short-, medium- and long-term measures against impunity in cases of human rights and IHL violations, regardless of particular circumstances or changes to the underlying determining factors. This implies strengthening certain components of the “Policy to counter impunity in cases of human rights violations and breaches of international humanitarian law by strengthening the Colombian State’s capacity to investigate, adjudicate and punish” in order to ensure the implementation of its general and specific objectives.
111. The policy essentially aims [to] overcom[e] obstacles to the elucidation of human rights and IHL violations and ensur[e] that those responsible are punished … This calls for strengthening the existing organizations, practices and procedures detecting human rights violations and breaches of IHL, resolving cases [and] punishing the perpetrators … It further calls for improving the legal framework and harmonizing its various components.
112. In the framework of the project for combating impunity, approved in June 2003 and used as a basis for the formulation of public policy, significant progress has made with regard to training civil servants in charge of the investigation phase and encouraging the treatment of human rights violation, selecting the cases []considered most critical in consultation with the OHCHR bureau in Colombia. Other measures have included the creation of a special team of detectives focusing exclusively on the enforcement of pending arrest orders in relation to the cases in question.
113. Moreover, the Special [A]ction [C]ommittee approved the signature of a cooperation protocol with the Armed Forces and the National Police (Ministry of Defence) with a view to protecting and guaranteeing the security of fact-finding commissions sent by investigating bodies on cases selected by that committee.
354. The policy of combating impunity, formulated through coordination between the executive and the investigation, control and law-enforcement agencies, comprises short-, medium- and long-term measures aimed at resolutely, comprehensively and consistently ensuring truth [and] justice … in cases of human rights and IHL violations. 
Colombia, Fourth periodic report to the Committee against Torture, 21 February 2008, UN Doc. CAT/C/COL/4, submitted on 21 January 2008, §§ 108–113 and 354.
Colombia also stated:
199. … [W]ith a view to mainstreaming the Minnesota and Istanbul Protocols, the [National] Institute [of Legal Medicine and Forensic Sciences ] has trained medical experts who practi[s]e autopsies in the following areas: (i) [m]odern technical and scientific procedures used to investigate deaths, and preservation and recording of physical evidence that may be useful in identifying possible suspects and constitute evidence at the trial stage; and (ii) guidelines contained in the Manual on the effective prevention and investigation of extra-legal, arbitrary and summary executions, published by the United Nations in 1991 and whose parts which have a bearing on the examination of corpses were included in the Manual on practices for medico-legal autopsies adopted as an institutional standard under the Agreement of 11 September 2002. In addition, the Institute’s basic procedural guides for the conduct of medico-legal autopsies deal with specific points such as identification of sexual offences, examination of decomposed corpses or body parts that have or have not been retrieved from water, injuries caused by electric current and other possible circumstances or findings that may be associated with or constitute acts of torture.
200. Moreover, it is provided that those responsible for the quality of service in forensic pathology should promote the application of the autopsy protocol developed by the United Nations as a guide for a comprehensive autopsy to detect possible violations of human rights and international humanitarian law in all cases subject to a medico-legal autopsy, especially in the context of events occurring in combat zones. The protocol ensures sound scientific documentation of the findings and achievement of the aims of a criminal investigation through the systematic examination and description of the corpse. Provision has been made for the application – where working conditions preclude its full adoption – of the emergency measures and adjustments contemplated in the protocol itself.
203. Institute staff is constantly kept up to date in the area of human rights and IHL. For instance, the 13th National Legal Medicine and Forensic Sciences Congress, held in 2006, addressed the following topics: (i) [d]ifferences and relation between human rights and IHL; (ii) the concept of forced disappearance; (iii) forensic sciences and humanitarian challenges; (iv) relations between the inter-American system of human rights, the International Criminal Court and the domestic juridical system.
207. During the period under review, steps were taken to develop a system for monitoring possible human rights and IHL violations by proposing criteria for subjecting corpses to a medico-legal autopsy. 
Colombia, Fourth periodic report to the Committee against Torture, 21 February 2008, UN Doc. CAT/C/COL/4, submitted on 21 January 2008, §§ 199–200, 203 and 207.
[footnote in original omitted]
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
207. The recruitment of persons under 18 is punishable under Colombian law. … In addition to the enlistment or recruitment of a child in government armed forces or in illegal armed groups, it is also a punishable offence to force children to participate in attacks or gather intelligence for conveying orders, transport weapons or supplies or cause damage to any property for military purposes.
208. This criminal offence is defined in such a way that the perpetrator may be either a member of an illegal armed group or a member of the military. The prohibition is also quite extensive, inasmuch as it applies not only to the act of recruitment, but also to the act of forcing minors to participate directly or indirectly in hostilities or armed action.
209. Investigations of the alleged commission of this offence fall within the purview of the Office of the Attorney-General, which, with a view to strengthening the State’s capacity to respond to serious acts that violate the human rights of children and adolescents recruited by illegal armed groups, established a special panel within the National Human Rights and International Humanitarian Law Unit to investigate cases relating to gender issues, children and adolescents.
210. As of May 2008, 150 proceedings regarding the recruitment of children had been initiated, with two convictions. The remaining cases are under way …
211. One of the convictions mentioned above was in a case initiated by the Commander of the National Army against members of FARC [Revolutionary Armed Forces of Colombia]. The other was in a case brought by the national police against a member of a self-defence group operating in the department of Meta for acts occurring in 2005.
212. In accordance with Justice and Peace Act No. 975 [(2005)] (the law under which the members of demobilized self-defence groups are being brought to trial), cases in which this offence may have been committed are also being investigated by the Justice and Peace Unit of the Office of the Attorney-General. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 207–212.
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
61. From the judicial perspective, the organ responsible for investigating, prosecuting and charging those responsible for violations of the law is the Office of the Public Prosecutor. This organ, as indicated in the last report, has a unit for the protection of human rights and international humanitarian law that deals with specific matters related to crimes that constitute human rights violations or breaches of international humanitarian law.
198. By Constitutional Case No. C-004/03, the Constitutional Court declared constitutional paragraph 3 of article 220 of Law No. 600 of 2000, the Criminal Procedure Code, extending the range of grounds for the Action for Review … [T]he Court held that the Action for Review applies against “preclusion of the investigation, stay of proceeding and acquittal in cases involving human rights violations or grave breaches of international humanitarian law … [when] a domestic judicial decision or a decision of an international human rights monitoring forum formally accepted by our country establishes a conspicuous breach of the obligations of the Colombian State thoroughly and impartially to investigate said violations.”
245. Combating impunity for violations of human rights and international humanitarian law. In July 2003, the national Government and the Government of the Netherlands signed an international cooperation agreement on “Bases for a management strategy and inter-agency coordination to combat impunity for human rights violations and breaches of international humanitarian law”. This agreement, which has been in operation to date, aims to: i) develop and implement a policy to combat impunity, and ii) pursue and follow up on a number of proceedings for human rights violations and breaches of international humanitarian law.
246. In pursuit of one of its aims, and through inter-agency action and cooperation from the Netherlands, with advice from the Colombia office of the United Nations High Commissioner for Human Rights, a public policy has been designed to combat impunity in cases of human rights violations and breaches of international humanitarian law[,] which seeks, from a comprehensive State perspective, to ensure that each of the entities involved in investigation, punishment and reparations for these violations develops a set of actions aimed at strengthening the rule of law.
247. The policy, which was formalized through CONPES [National Council on Economic and Social Policy] document [No.] 3411 of 2006, begins with the recognition that the Colombian State must have comprehensive short-, medium- and long-term measures against impunity for human rights violations and breaches of international humanitarian law, regardless of specific conditions or changes in the dynamic of the key players in the violations. These conditions involve strengthening some elements of the “Policy of combating impunity for human rights violations and breaches of international humanitarian law by strengthening the capacity of the Colombian State for investigation, prosecution and punishment” in order to ensure compliance with its overall objective and specific goals.
248. The policy is geared primarily to overcoming obstacles that prevent or hinder investigating cases of human rights violations and breaches of international humanitarian law, punishing perpetrators and compensating victims. This implies the strengthening of existing organizations, practices and procedures for detecting the occurrence of violations, resolving cases, punishing perpetrators and compensating victims. At the same time[,] it implies improvement of the regulatory framework to ensure the harmonization of its various sources.
249. In this context, significant progress has been made in training staff involved in the research phase and in expediting cases of human rights violations. A selection was made of cases deemed most critical, according to the Colombia office of the High Commissioner and, among other measures, a special group of investigators was created exclusively to execute outstanding arrest warrants in such cases.
250. Moreover, the Special Action Committee approved the signing of a cooperation protocol with the Armed Forces, the National Police and the Ministry of National Defence, to protect and ensure the safety of commissions formed by investigative entities entrusted with fact-finding in specific cases selected by the Committee.
251. Action was also taken to strengthen entities responsible for investigation and prosecution, namely the Unit for Human Rights and International Humanitarian Law of the Public Prosecutor’s Office, the Office of the Attorney General and the Judicial Council, for institutional strengthening of criminal courts and specialized circuit courts. Work also went ahead on assessments of information systems in the field of human rights violations and breaches of international humanitarian law in institutions with competence in the field. This was done in order to design a system that affords access to comprehensive and updated information about investigations of violations of human rights and international humanitarian law under way.
256. The Government has allocated resources to this endeavour of over 5,000 million pesos.
286. On the issue of human rights training, the security forces have issued instructions and provided ongoing training to all their members to act with full respect for human rights and international humanitarian law. With regard to conduct constituting violations, the Government has reiterated its commitment to investigating and prosecuting these cases.
X. Article 24. Rights of children and measures to protect them
568. As regards the bringing to trial of members of organized illegal armed groups, the Attorney General filed a complaint with the State Prosecutor’s Office for the crime of illegal recruitment of children under 18 years of age, but as yet no persons have been identified and individualized. The Ministerio Público requested the prosecuting authority that members of the AUC (United Self-Defence Forces) involved in the processes of truth, justice and reparation be investigated with respect to the involvement of children and adolescents in their groups, the place where they were recruited, and whether they have information about the recruiters.
569. … At present, the Attorney General is working with the media, other entities and international cooperation to ensure that the crime of unlawful recruitment is given due coverage and that those responsible are convicted.
III. Challenges
680. With regard to the security forces, the State has a responsibility to achieve full and strict compliance with the protocols and standards relating to human rights and international humanitarian law by their members through the implementation of the Comprehensive Policy on Human Rights of the Defence Ministry, and, in cases of violation, to effectively respond to reports and apply the criminal and disciplinary sanctions provided by law. 
Colombia, Sixth periodic report to the Human Rights Committee, 2 June 2009, UN Doc. CCPR/C/COL/6, submitted 10 December 2008, §§ 61, 198, 245–251, 256, 286, 568–569 and 680.
[footnotes in original omitted]
In 2009, Colombia’s National Council for Social and Economic Policy approved a Policy for the Consolidation of Mechanisms for the Tracing and Identification of Disappeared Persons in Colombia. The Policy states:
The disappearance of a family member, and thus the lack of knowledge of their fate and whereabouts, has psychological, economic, social and legal consequences that extend even to the communities and affect their ability to face the past and take part in a lasting peace and reconciliation process. These disappearances are usually associated with violations of human rights and international humanitarian law and therefore require a special consideration within the transitional justice model adopted and in each of its mechanisms: criminal prosecution, investigations for the establishment of the truth, reparation and institutional reforms. 
Colombia, National Planning Department, National Council for Social and Economic Policy, Consolidation of Mechanisms for the Tracing and Identification of Disappeared Persons in Colombia, CONPES Document No. 3590, 1 June 2009, pp. 33–34.
[footnote in original omitted]
In 2010, in its Directive No. 11 providing guidance for judicial attorneys and disciplinary officials regarding the crime of murder of protected persons, Colombia’s Attorney General stated:
In the so-called falsos positivos, the active subject uses the circumstances of the armed conflict to kill protected persons, often simulating combat, which is a clear violation of human rights and international humanitarian law. Such conduct is subject to prosecution, investigation and sanction by the Colombian State. 
Colombia, Attorney General of the Nation, Directive No. 11, Guidance Regarding the Crime of Murder of Protected Persons, 14 July 2010, p. 7.
In 2010, Colombia’s National Council for Social and Economic Policy approved the Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups. The Policy states:
Table 2
Legal Developments
Legislative Standard
Law 1257 of 2008 “Enacting Provisions on Awareness, Prevention and Sanction of Forms of Violence and Discrimination against Women, Modifying the Penal Code, the Code of Criminal Procedure and Law No. 294 of 1996, and Enacting Other Provisions”.
… Regarding the rights of girls, Article 9, paragraph 8, provides for the obligation to adopt measures for the investigation or punishment of members of the police, armed forces, security forces and other forces that commit acts of violence against girls and women within a situation of conflict owing to the presence of armed actors.
Table 3
Other Normative Developments
Directives [binding for the national government and the institutions of the Executive]
Presidential Directive
- No. 9 of 2009
For its part, directive 09/09 orders … the national police to strengthen its activities to “identify, apprehend and try before the courts the heads of the groups and organizations that recruit and manipulate children and adolescents for the commission of criminal activities”. 
Colombia, National Planning Department, National Council for Social and Economic Policy, Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups, CONPES Document No. 3673, 19 July 2010, pp. 16–19.
[footnote in original omitted]
The Policy also states:
Law 1098 [the 2006 Code on Children and Adolescents] … extends the application of the principle of discretionary prosecution to those proceedings against adolescents as participants of crimes committed by armed groups outside the law (article 175) [footnote: “as follows: ‘The Office of the Attorney General may forego a criminal prosecution in those cases where adolescents, under any conditions, were part of armed groups outside of the law, or participated directly or indirectly in the hostilities, in armed actions or in crimes committed by armed groups. … The principle of discretionary prosecution shall not be applied to acts which might constitute grave breaches of international humanitarian law, crimes against humanity or genocide pursuant to the Rome Statute’”] 
Colombia, National Planning Department, National Council for Social and Economic Policy, Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups, CONPES Document No. 3673, 19 July 2010, p. 16.
[emphasis in original]