Practice Relating to Rule 96. Hostage-Taking
Colombia’s Basic Military Manual (1995) prohibits the taking of the civilian population as hostages.
Colombia’s Penal Code (2000) imposes a criminal sanction on anyone who, during an armed conflict, orders or carries out the taking of hostages.
The Report on the Practice of Colombia refers to a decision by the Council of State in which the Council notes that the category of direct attacks on civilians also includes hostage-taking and that “this is especially true when the military operations are disorderly and improvised and an unwillingness to protect the hostages is combined with a total disregard for human rights and the basic principles of the law of nations”.
In 1995, Colombia’s Constitutional Court held that the prohibitions contained in Article 4(2) of the 1977 Additional Protocol II were consistent with the Constitution and practically reproduced specific constitutional provisions.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
As members of the civilian population affected by internal armed conflicts, children and adolescents have the right to respect for the fundamental guarantees granted to all persons not actively participating in hostilities, as established by Article 3 common to the  Geneva Conventions … In accordance with this article, in cases of non-international armed conflicts in the territory of one of the Parties, each party to the conflict shall be bound to apply certain minimum guarantees without affecting their legal status as parties to the conflict, including: (1) Persons taking no active part in the hostilities shall be treated humanely in all circumstances without adverse distinction based on discriminatory criteria; (2) To this end, the following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (including children): … (b) Taking of hostages.
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 taking hostages.
[footnote in original omitted]
The Court also held:
[T]he prohibition against the taking of hostages has been classified as an imperative norm of international law or ius cogens
. In this sense, it must be taken into account that the prohibition against taking hostages under international humanitarian law in practice amounts to a number of non-derogable guarantees provided by international human rights law, including the right to life, liberty and security of person, the prohibition against torture and cruel, inhuman and degrading treatment, as well as the protection against arbitrary detention. All this … is a clear indication of its imperative, peremptory nature, or ius cogens
The Court further stated:
There is a customary definition of the elements constituting the war crime [of taking hostages] that also form part of the Colombian constitutional framework. The taking of hostages as a war crime, in the context of non-international armed conflicts, is considered to include the following elements: (a) the detention or retention of one or more persons (the hostages), (b) a threat involving the murder, bodily harm or prolonged detention of the hostage, (c) with the intention to force a third party – which can be the State, an international organization, a natural or legal person or group of persons – to undertake or to abstain from undertaking certain acts, (d) as an explicit or implicit condition to free the hostage or to secure the hostage’s safety.