Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Colombia’s Circular on Fundamental Rules of IHL (1992) states: “The Parties to the conflict must at all times make a distinction between civilians and combatants in order to protect the civilian population and civilian objects.”
Colombia’s Basic Military Manual (1995) provides for the obligation “to distinguish between combatants and the civilian population”.
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states:
In view of the new circumstances and modalities of the criminal acts of illegal armed groups which operate more and more frequently disguised as civilians, the armed forces must undertake all possible efforts to distinguish the civilian population and to protect the civilian population in all circumstances.
In 2004, in the Constitutional Case No. C-037/04
, the Criminal Chamber of Colombia’s Constitutional Court stated that according to “the principle of distinction … parties to a conflict must distinguish between combatants and non-combatants (the civilian population), as the latter cannot be the object of attack”.
In 2006, in the Constitutional Case No. T-165/06, the First Appeals Chamber of Colombia’s Constitutional Court stated:
[W]ith regard to the conduct of hostilities, it is important to note that IHL is ruled by fundamental principles, such as the principles of distinction, limitation and proportionality. Indeed, … the principle of distinction imposes on weapon bearers the obligation to distinguish in their military actions between combatants and non-combatants.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he essential principles of international humanitarian law have acquired ius cogens
status, based on the fact that the international community as a whole has recognized their peremptory and imperative nature … Among the essential principles of international humanitarian law with ius cogens
status applicable in internal armed conflicts … [is] … the principle of distinction.
The Court further held: “The principle of distinction, one of the cornerstones of international humanitarian law, flows directly from the obligation to protect the civilian population from the effects of war, as in times of armed conflict it is only acceptable to weaken the enemy’s military potential.”
(footnote in original omitted)
The Court also held:
The general duty to distinguish between civilians and combatants is an essential duty binding the parties to any non-international armed conflict to differentiate at all times between civilians and combatants in order to protect civilians and their property. Indeed, parties to a conflict are bound to make every effort to distinguish between military objectives and civilians … This rule is found in international treaties applicable in internal armed conflicts and is binding on Colombia. It forms part of customary international humanitarian law and has attained ius cogens
[footnote in original omitted]
The Court further found that “the principle [of distinction] … is … customary international law applicable in both internal and international armed conflicts”.
Colombia’s Circular on Fundamental Rules of IHL (1992) states: “Neither the civilian population, as such, nor individual civilians may be made the object of attack. Attacks may only be directed against military objectives.”
Colombia’s Instructors’ Manual (1999) states that it is a rule of combat to “fight only combatants”.
In reaction to an article in the press, the Office of the Human Rights Adviser in the Office of the President of Colombia stated:
In a non-international armed conflict, civilians can take up arms and form armed rebel groups, putting themselves outside the laws of the country. They thus become combatants which the State can attack and fight against with perfect legitimacy. As a result, such rebels are criminals and combatants at the same time.
Colombia’s Defensoría del Pueblo (Ombudsman’s Office), with respect to “convivir”, considered that:
These organizations, nurtured by the national government itself, contribute nothing to the immunity of the civilian population, since they involve citizens in the armed conflict, divesting them of their protected status and making them into legitimate targets of attack … In the view of the Ombudsman’s Office, the operation of the Convivir
cooperatives means that civilians participate directly in the armed conflict, thereby becoming combatants.
The Report on the Practice of Colombia states:
In Colombia, communal guard and private security services have been created under the name “convivir
”. These services take the form of rural security cooperatives composed of individuals whom the State has authorized to bear arms, and who collaborate with the authorities by providing information to the public security forces concerning the activities of the guerrilla organizations. There is a public debate over the question of whether the members of these services should be considered civilians or combatants.
Colombia’s Circular on Fundamental Rules of IHL (1992) states: “Neither the civilian population as such nor individual civilians may be made the object of attack.”
Colombia’s Basic Military Manual (1995) provides: “The civilian population is not a military objective.”
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone who, during an armed conflict, carries out or orders the carrying out of … attacks against the civilian population”.
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states: “Attacks against civilians do not provide any military advantage.”
In 2007, in Constitutional Case No. C-291/07
, the Plenary Chamber of Colombia’s Constitutional Court stated that the prohibition of attacks against civilians in the 1977 Additional Protocol II “has attained customary status, mainly due to its impact on State practice and on conflicts in the last decades”.
The Court further held:
The principle of distinction is complex and encompasses a number of treaty and customary norms applicable in internal armed conflicts, in addition to, in many cases, enjoying ius cogens
status. These rules [include] … the prohibition of direct attacks against the civilian population.
The Court also held:
Prohibited attacks are those where the primary objective is the civilian population. In order to determine whether an attack has been directed against the civilian population, international case law has taken into account factors such as: the means and methods employed for the attack, the number and status of the victims, the nature of the crimes committed during the attack, the resistence encountered, and the extent to which the attacking force complied or attempted to comply with the precautionary principle under international humanitarian law. It is not required that the attack be directed toward the civilian population as a whole in the geographic location where the events occur. But it must be proven that the attack was not directed against a limited number of individuals.
[footnotes in original omitted]
The Court further stated that “attacks directed against the civilian population can constitute war crimes under treaty and customary international humanitarian law applicable in internal armed conflicts.”
The Court also held:
The prohibition of indiscriminate attacks … is directly related to the prohibition of direct attacks against the civilian population, so much so that the International Criminal Tribunal for the former Yugoslavia has classified the commission of attacks using indiscriminate means as attacks directed against civilians.
[footnote in original omitted]
On the basis of an opinion of the First Deputy Attorney-General in a case before the Council of State in 1994, the Report on the Practice of Colombia defines direct attacks against civilians as any operation that corresponds to one of the following three situations: a) it does not follow plans and strategies that respect the law of nations; b) the necessary staff and resources to save the lives of the victims are lacking; c) the attacks do not cease once the adverse party has been neutralized.