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.”
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”.
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.”
According to the manual, this is also the case for violations committed by members of organized armed groups.
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.
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”.
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.
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.
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”.
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”.
(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.
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.