Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
Colombia’s Basic Military Manual (1995) states: “Under the terms of Chapter IX of the First Geneva Convention relative to the repression of abuses and infractions, IHL establishes the principle of individual responsibility.”
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 the civilians in the power of the adverse party; the 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 persons protected under the 1949 Geneva Conventions and the 1977 Additional Protocols I and II.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
6.4.1. There is no question that since they were recruited by unlawful armed groups – many of them by force or allegedly “voluntarily” – children and adolescent combatants are victims of the crime of unlawful recruitment of minors. As such they have a right to special assistance and protection from the State and that those who made them participate in the armed conflict be brought to criminal justice. At the same time, there is also no question that in the course of confrontations, minors can commit unlawful acts of the utmost gravity which in turn generate victims. If they survive, these victims or otherwise their relatives also have rights at the constitutional and international level that must be respected (namely, the right to know the truth, to justice and to reparations for violations of the criminal laws).
6.4.2. The finding and degree of criminal responsibility of each minor involved in the commission of a crime during the armed conflict must be evaluated individually, with all due attention not only to the minor’s low age and degree of psychological development, but also to a series of factors, including (a) the specific circumstances surrounding the commission of the crime and (b) the personal and social circumstances of the child or adolescent implicated, including if he or she is a victim of a war crime of the utmost gravity. Further, for every case it shall be necessary to establish (c) the degree of responsibility of those liable for recruiting the minor and those who gave the orders, (d) the responsibility of those who, in addition to acting as recruiters, have determined the minor’s behaviour inter alia [by threatening] … execution or extreme physical punishment … , and (e) the degree of influence of these circumstances on the elements required for the existence of a crime: that it be defined by law, that it goes against legally recognised values and the element of guilt. It will also be necessary to determine for each individual case (f) whether it is possible, based on the concrete and specific behaviour of the minor involved, that such behaviour be considered a political crime, in spite of having been recruited against his or her will if that were the case; and also (g) the link between the nature of these political crimes and the possible criminal responsibility arising from the connected crimes, as well as (h) behaviour that would be excluded from the scope [of political crimes], such as ferocity, barbarism, terrorism, etc. All of these are factors to which the judge shall accord the utmost importance when determining the criminal responsibility of a minor.
6.4.3 What is clear to the Court is that the ab initio and general impossibility of attaching any type of criminal responsibility to underage combatants, based on the argument that they are victims of the crime of forced recruitment, ignores each individual child or adolescent’s actions and presupposes that underage combatants do not commit punishable acts during armed conflict other than to form part of the illegal armed groups and that during the [armed] conflict they cannot ever decide to participate in the commission of crimes, which would also discard their responsibility for the eventual commission of heinous acts. Their status of victims of such a horrible war crime as is forced recruitment demands an energetic and decisive response from authorities for the protection and punishment of those responsible. However, criminal acts committed by minors must also be carefully and individually evaluated if it occurred during their participation in illegal armed groups together with the effects of such criminal behaviour on others’ rights because there are other rights involved – the rights of the victims – that cannot be discarded or ignored by the authorities.
6.4.4. The Court values the arguments presented by the plaintiffs and those intervening: If a minor has been made a victim of a war crime by having been forced to participate actively in an illegal armed group, there is no reason to subsequently criminally prosecute this minor for the mere fact of having belonged to such an irregular group. This is something that must be taken into account in each individual criminal prosecution at the moment of determining the responsibility of the minor involved because depending on the case at hand, the forced recruitment may have an effect on the different elements constituting the crime for which he or she is being prosecuted. At the same time, however, the Court recalls that the simple fact of belonging to an armed group is not the only punishable act that can be attributed to an underage combatant. During their participation in unlawful groups, underage combatants can commit murders, massacres, kidnappings, torture, terrorist acts, extortions and theft, thus committing serious violations of the fundamental rights of persons who become victims of such acts. To exclude from the start every type of criminal responsibility for these acts committed during the conflict based on the forced recruitment of which these minors were victims and without paying due attention to the circumstances of each individual case and each minor in particular constitutes in practice a complete disregard for the rights of the victims of such acts. It is more in accordance with the Constitution and the international obligations binding the State to evaluate on a case-by-case basis the effect which having become a victim of forced recruitment has on the determination of criminal responsibility as well as the effect of additional pressures or coercion to which they may have been subjected to.
[footnote in original omitted]
The Court also held:
During every trial involving demobilised minors who used to belong to illegal armed groups it is necessary to take into account as a basic preliminary consideration their status as victims of the crime of forced recruitment and the circumstances affecting their behaviour while members of such groups, particularly when such circumstances can have an impact on the determination and degree of criminal responsibility, such as: their young age, their psychological development, the specific circumstances under which the crime was committed, the degree of responsibility attributable to those participating in the forced recruitment, as well as to the intellectual authors of the crimes who may be older, the effect of death threats or physical punishment on the minor’s will to commit the act, the circumstances surrounding the commission of a political crime in spite of the forced nature of the recruitment, the scope of pardons granted in specific cases, and many other factors that can have a concrete effect on the identification of each of the elements required to prove criminal responsibility.
In 2007, in the Constitutional Case No. C-291/07
, the Plenary Chamber of Colombia’s Constitutional Court stated: “The importance of customary norms of contemporary international humanitarian law is that they themselves provide the basis for determining the individual criminal responsibility of those who commit war crimes.”
[T]here is no motive defined under the elements of the criminal offence of War Crimes against Civilians under Article 120(1) of the BCCRC … With regard to the subjective component, it is sufficient that a perpetrator is aware of the said circumstances in which he acts, that those acts are in contravention of rules of the international law, and that the perpetrator is aware of possible consequences arising from the unlawful behaviour, so that he either wants the occurrence of such circumstances (direct intent), or he consents to them (potential intent). The latter form of guilt is sufficient for the elements of the said criminal offence to be met. Based on the content of the evidence presented, the first instance court justifiably concluded that regardless of the fact that the accused was not in favour of creating so-called “Great Serbia”, through his actions he met all necessary objective and subjective elements of the criminal offence under Article 120(1) of the BCCRC.
In order to establish [the] responsibility [of the accused] it suffices to find that he was actively involved in the criminal offence perpetrated during the war or armed conflict, and that he did so as a member of a military unit, and that it was done against civilians.