القاعدة ذات الصلة
Colombia
Practice Relating to Rule 98. Enforced Disappearance
Section A. General
Colombia’s Basic Military Manual (1995) provides: “It is prohibited to deprive [the civilian population] of its liberty (sequestration, enforced disappearances).” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 30.
Colombia’s Penal Code (2000) states:
Article 165. Enforced disappearance. An individual who is a member of an armed group outside the law and deprives a person of liberty, in whatever way, and then conceals this person and refuses to acknowledge the deprivation [of liberty] or to give information on the person’s whereabouts, thus placing that person outside the protection of the law, shall be punished by imprisonment …
The same penalty shall be imposed on a public servant, or on an individual acting under the authority or acquiescence of the latter, who carries out the above-described conduct. 
Colombia, Penal Code, 2000, Article 165.
The expression “who is a member of an armed group outside the law” was declared non-enforceable by the Constitutional Court in 2002 (Constitutional Case No. C-317/02).
Colombia’s Decree on Reparation to Victims of Armed Groups (2008) states:
The State shall recognize and pay directly to victims, or to the beneficiaries mentioned in this decree, … compensation in the form of the following sums depending on the fundamental rights violated:
- … enforced disappearance … :
Forty legal monthly minimum wages. 
Colombia, Decree on Reparation to Victims of Armed Groups, 2008, Article 5.
The Decree also states:
CONSIDERING: …
That according to paragraph 1 of Article 15 of Law 418 of 1997, modified and extended by Laws 548 of 1999, 782 of 2002 and 1106 of 2006 [the Law on Judicial Cooperation, as amended] “victims of political violence are those persons belonging to the civilian population who suffer harm to their lives or serious deterioration of their personal integrity or their belongings due to terrorist attacks, fighting, kidnapping, attacks and massacres in the context of the internal armed conflict. Displaced persons are victims under the terms of article 1 of Law 387 of 1997”. 
Colombia, Decree on Reparation to Victims of Armed Groups, 2008, Preamble.
In 2002, in the Constitutional Case No. C-317/02, the Plenary Chamber of Colombia’s Constitutional Court stated:
Enforced disappearance: origin, development and regulation in international law. International rules as the minimum standard of protection on this matter.
… At the international level, enforced disappearance has been treated as a State crime, which engages the State’s responsibility whenever the conduct takes place with the support or tolerance of public authorities, or when the State acts with impunity or fails to take precautions to avoid the commission of the crime.
Constitutional background of enforced disappearance and its development within domestic legislation.
… [B]y not qualifying the active subject of the disappearance, [article 12 of the 1991 Constitution] sets out a universal prohibition, which is directed at all persons regardless of how they are qualified, whether public officials or individuals. [This prohibition is] broader than the one set out in international instruments …
Article 165 of Law 599 of 2000 [Penal Code], at stake, criminalizes the crime of enforced disappearance as follows:
An individual who is a member of an armed group outside the law and deprives a person of liberty, in whatever way, and then conceals this person and refuses to acknowledge the deprivation [of liberty] or to give information on the person’s whereabouts, thus placing such a person outside the protection of the law, shall be punished by imprisonment …
The same penalty shall be imposed on a public servant, or on an individual acting under the authority or acquiescence of the latter, who carries out the above-described conduct.
… [T]he Court concludes that as the enforced disappearance is committed by State officials – public servants, whether directly or indirectly through an individual who acts under the authority or acquiescence of the latter [part two of article 165], the description of the conduct requires the deprivation of a person’s liberty, whether legally or illegally, the concealment of the person and the lack of information to the person’s family regarding his or her whereabouts. It is also required that, once the victim is concealed, the perpetrator abstains from providing information on his or her whereabouts, thus placing the victim outside the protection of the law and hindering the use of legal remedies for his or her protection. This means that there is no need for a request [for information]; the absence of information in itself is sufficient.
This part is certainly in conformity with the minimum protection provided for in international instruments, according to which enforced disappearance is a State crime.
The first part of article 165 of the Penal Code, on the other hand, provides for the crime of enforced disappearance committed by an individual “who is a member of an armed group outside the law”. For the Court, this expression is unconstitutional because it significantly reduces the sense and scope of the general protection set out in article 12 of the Political Constitution.
Indeed, the active subject as described in [this provision] excludes others who could also commit the punishable conduct, that is:
a. An individual who is not a member of any group, that is, who carries out the punishable conduct individually or motu proprio.
b. An individual who is a member of an unarmed group.
c. An individual who is a member of an armed group that is not outside the law.
In reality, by excluding the above-mentioned hypothesis, article 12, which, as previously mentioned, provides for a broader protection than international instruments, is violated …
… [A]rticle 12 responds to the reality of our country, where the active subject or participant in an enforced disappearance is not always a public servant or an individual acting under the latter’s protection or acquiescence, but where there are also individuals or groups of individuals who might commit this crime, such as, for example, social cleansing groups, ordinary criminals, self-defence or paramilitary groups, drug traffickers, guerrillas, etc.
In view of the above, … the Court declares unconstitutional the expression “who is a member of an armed group outside the law” in the first part of article 165 of the Penal Code …
Thus, as a consequence of the declared non-enforceability of the expression “who is a member of an armed group outside the law”, the crime of enforced disappearance may be committed by any individual, without any restriction. However, the Court finds it necessary to specify that, although this crime is committed when an individual subjects another person to deprivation of liberty, and then conceals this person and refuses to acknowledge the deprivation of liberty or to give information on the person’s whereabouts, thus placing this person outside the protection of the law, it must be understood that the conjunction “and” does not require that, for the offence to be committed, the individual must be requested [to provide information], but that the lack of information or the refusal to acknowledge the deprivation of liberty is sufficient[.] 
Colombia, Constitutional Court, Constitutional Case No. C-317/02, Judgment, 2 May 2002, pp. 15, 20–22 and 27–31.
[emphasis in original]
Regarding the difference between the definitions of the crimes of enforced disappearance and kidnapping, the Court stated:
[W]hile the criminalization of enforced disappearance seeks to protect a multiplicity of rights, such as the rights to life, liberty and security of the person, the prohibition of cruel, inhuman or degrading treatment, the right not to be arbitrarily detained, arrested or exiled, the right to a fair trial and due process, the right to recognition as a person before the law, and the right to humane treatment in detention, among others, [the criminalization of] kidnapping protects only the rights to liberty and personal autonomy. Moreover, while the crime of kidnapping is committed by the person who seizes, abducts, holds or conceals another person for the purposes determined by penal law, that of enforced disappearance is committed when the following acts are accomplished: the deprivation of liberty of a person, which may be ab initio legal and legitimate, followed by the person’s concealment and the refusal to acknowledge the deprivation of liberty or to provide information on the person’s whereabouts, thus placing that person outside the protection of the law. 
Colombia, Constitutional Court, Constitutional Case No. C-317/02, Judgment, 2 May 2002, p. 31.
Regarding the existence of an armed conflict, the Court stated:
Regarding the legislative development of article 12 of the Constitution, it should be recalled that in 1992, the Draft Law 152 of 1992, which sought to qualify the forced disappearance of persons as a crime, was presented to Congress. In supporting this initiative, the rapporteur, based on a document prepared by the Presidential Council for Human Rights, considered that although in the literature on this subject the active subject of this crime is generally a representative of the authorities, the Colombian case has special characteristics since private individuals can also commit it. This is the case, for example, for guerrillas when they make people disappear owing to internal conflicts or desertions or owing to command and security problems; for drug traffickers when they use this system to settle scores or avenge previous offences by former collaborators in the business; and for paramilitaries, who have also been no strangers to this abominable practice. 
Colombia, Constitutional Court, Constitutional Case No. C-317/02, Judgment, 2 May 2002, p. 22.
In 2005, in the Constitutional Case No. C-473/05, the Plenary Chamber of Colombia’s Constitutional Court stated with regard to deceased victims of enforced disappearance:
All necessary measures must be adopted in order to deliver the body to [the victim’s] … relatives. This obligation must be fulfilled irrespective of whether the identity of the perpetrator of the disappearance or killing is identified and of whether an investigation of those allegedly responsible is opened. 
Colombia, Constitutional Court, Constitutional Case No. C-473/05, Judgment of 10 May 2005, § 58.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of enforced disappearances. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]
In 2010, in the Plazas Vega case, Colombia’s Third Criminal Court of the Specialized Circuit of Bogotá stated:
The first thing to note is that it was through Law No. 589 of 2000 that this criminal behaviour [enforced disappearance] was criminalized, with the clear purpose of adapting domestic legislation … to international law. Later, the content of that rule was included in article 165 of the Penal Code, Law 599 of 2000 …
According to the legal description [of the crime of enforced disappearance], the following elements can be inferred:
(i) Although this crime was initially conceived as a State crime, from the way in which the provision is worded and in accordance with the Constitutional Court’s ruling … , in addition to public servants, the following persons may also commit the offence: (a) a private individual who does not belong to any group, that is, who executes the punishable act individually or proprio motu; (b) a private individual who is a member of a group that is not armed; and (c) a private individual who is member of a group that is not outside the law.
On the other hand, the passive subject is undetermined, as the crime can be committed against any natural person.
… [T]he punishable act of enforced disappearance is a multi-offence crime as it violates several rights that are needed for the development of society and the human being: personal liberty, access to justice, the free development of one’s personality, human dignity, due process, etc. …
In view of the above, the act is not completed simply by restricting the victim’s liberty, as depriving someone of his or her freedom of movement can be lawful. For this reason, the perpetrator’s intention to deny information about the victim’s situation or whereabouts is particularly relevant. This aspect is what differentiates enforced disappearance from other punishable acts such as kidnapping or unlawful deprivation of liberty. …
(iii) According to the provisions of international instruments, the crime of enforced disappearance is conceived as a punishable act of a permanent nature. …
In view of the commitments undertaken by the Colombian State, the above-mentioned [1994 Inter-American] Convention [on the Forced Disappearance of Persons] was approved by Law No. 707 of 2001. The Constitutional Court, in its case No. C-580 of 2002, declared that law to be enforceable and stated regarding the point at stake: “This crime must be considered as a crime of continuous or permanent execution for such time as the victim’s whereabouts are not known.”
For this reason, it would be wrong to assume that the continuation of the unlawful situation depends on the deprivation of liberty. This is because, among other things, it is not an element of the crime that the person who is said to have disappeared must be alive, nor that he or she must have died … The duty to provide information is violated whether the information] concerns the deprivation of liberty or the whereabouts of the victim or the victim’s body. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 79–85.
[footnotes in original omitted; emphasis in original]
The Court further stated:
The present investigation originated on 6 and 7 November 1985, when the … self-styled “Iván Marino Ospina” branch of the guerrilla movement calling itself “M-19 – 19 April Movement” violently occupied the Palace of Justice in the centre of Bogotá, in an “operation” paradoxically named “Antonio Nariño for human rights”, with the aim of subjecting the then President of the Republic … to a political trial in light of the government’s alleged non-compliance with the peace agreements signed with the rebel group.
Moments after the start of the seizure [of the building], the Chief of Staff of the Thirteenth Brigade … activated the National Defence Plan “Tricolor 83” and the Brigade Operations Centre.
A tactical and intelligence operation was then carried out, directed and coordinated by the National Army and aimed at retaking the Palace of Justice and freeing the hostages …
… [T]he freed hostages were identified, questioned, listed and classified as follows: personnel not involved in the subversive operation; participants in the assault; and possible M-19 collaborators from inside the Palace of Justice …
In this way, members of the armed forces rescued from the Palace of Justice more than 200 people who, … in accordance with the recovery and rescue plan, were almost all moved to the Casa Museo del Florero and, after being identified, were released. However, 11 of the rescued persons have never been traced.
[I]t must be said that … at the time the events took place, the “secret” “special intelligence operations plan No. 002/80” was in full force. This plan was designed to “simultaneously identify, locate, capture and question M-19 members operating in the area under the jurisdiction of the BIM [Brigade XIII, of which the accused was a Colonel]” and assigned military targets belonging to this illegal armed group to the Cavalry School.
In view of the reprehensible actions of the members of the M-19 subversive group, who placed in danger the lives of the civilians who were inside the Palace, the Court cannot ignore the fact that the intervention of the public forces was imperative to re-establish the constitutional order that had been shattered. Likewise, it was legitimate for the military to work towards identifying and sorting the people who were evacuated from the conflict zone, and it was appropriate to use the Casa del Museo del 20 Julio as a command post for this work, in accordance with the operational manuals in force at the time. What, however, is inconceivable in a Social and Democratic State governed by the rule of law is that the authorities responsible for the security of their fellow citizens, for the maintenance of peaceful coexistence and fairness, act surreptitiously with total disregard for domestic and international norms related to the protection of human rights. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 1, 3, 5, 128 and 285–286.
[footnotes in original omitted]
The Court held:
[T]he office will declare that Luis Alfonso Plazas Vega is the perpetrator-by-means responsible for the homogeneous concurrence of the crimes of enforced disappearance of which the following were victims: … , based on the original wording of the provisions no. 165 and 166(1) of Law 599 of 2000[.] 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, p. 286.
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:
137. In order to meet the objectives established by the commanders of the organization, that is, “to combat its natural enemy: the guerrillas” and their supposed collaborators or sympathizers and to carry out executions pursuant to the misnamed “social cleansing” policy, [its members] resorted to certain criminal acts such as enforced disappearances … in the areas where they were present.
219. At the domestic level, article 12 of the [1991] Constitution provides that: “Nobody shall be subjected to enforced disappearance, torture or cruel, inhuman or degrading punishment.” 
Colombia, High District Court of Bogotá, El Iguano case, Judgment, 2 December 2010, §§ 137 and 219.
[footnote in original omitted]
In 2009, Colombia’s National Council for Social and Economic Policy approved a policy on the Consolidation of Mechanisms for the Tracing and Identification of Disappeared Persons in Colombia. Regarding the prohibition of enforced disappearance, the Policy states:
International instruments or standards
Resolution No. 47/133 of 1992 of the United Nations General Assembly – Resolution
Subject or highlighted aspects
Approves the Declaration on the Protection of All Persons against Enforced Disappearance, which bans the conduct within the framework of the universal human rights system.
International instruments or standards
Inter-American Convention on the Forced Disappearance of Persons (1994) – Treaty
Subject or highlighted aspects
Defines forced disappearance and sets forth the obligations of States Parties in the prevention, punishment and eradication of the forced disappearance of persons.
International instruments or standards
Rome Statute of the International Criminal Court (1998) – Treaty
Subject or highlighted aspects
Includes enforced disappearance among the crimes against humanity and provides a definition according to which political organizations can be active subjects of this crime through direct or indirect commission.
Domestic instruments or standards
[1991] Political Constitution of Colombia, Title II, Chapter I, Article 12
Subject or highlighted aspects
Provides that no one may be subjected to enforced disappearance …
Domestic instruments or standards
Law No. 589 of 2000
Subject or highlighted aspects
Criminalizes enforced disappearance …
Domestic instruments or standards
Law No. 599 of 2000 [the Penal Code]
Subject or highlighted aspects
In its article 165, criminalizes enforced disappearance and includes private individuals who are members of illegal armed groups among the possible active subjects.
The definition of enforced disappearance, which was incorporated into the Colombian penal system, is provided for in article 1 of Law No. 589 of 2000 and correspondingly in article 165 of Law 599 of 200[0]. According to this definition, the crime of enforced disappearance is committed by an individual who … subjects another person to any form of deprivation of liberty, and then conceals him or her and refuses to acknowledge the deprivation [of liberty] or to give information on the person’s whereabouts, placing that person outside the protection of the law. The crime of enforced disappearance may also be committed by a public official, or an individual acting at the instigation or with the acquiescence of that official, who carries out the described conduct.
It is important to note that this definition of the crime of enforced disappearance is different from the one adopted by the UN human rights system and the Inter-American human rights system as it includes private individuals among the possible active subjects of the punishable conduct.
Enforced disappearance constitutes a multiple and continuous violation of many recognized rights, such as “the right to life, personal integrity and liberty, as well as the prohibition of cruel, degrading or inhuman treatment and arbitrary detention”. In view of the above, enforced disappearance goes against international human rights instruments such as … [the 1977] Additional Protocol II to the Geneva Conventions of 12 August 1949. 
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. 5, 7 and 31–32.
[footnotes in original omitted]
The Policy also states:
The disappearance of a family member, and thus not knowing their fate or whereabouts, has psychological, economic, social and legal consequences that extend even to whole 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[.] 
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.