Соответствующая норма
Colombia
Practice Relating to Rule 151. Individual 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, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 37.
Colombia’s Operational Law Manual (2009) states:
In order to declare a person responsible for the commission of an offence, it is necessary for them to have carried out a typical, unlawful and guilty act, in other words a crime. It is important to recall that the individual can be held responsible for an act or omission.
According to criminal responsibility, a person can be held responsible:
a. for his or her own acts when he or she is the author;
b. for acts committed jointly with other persons, after a prior agreement and division of the criminal work, when he or she is a co-author;
c. for acts committed by his or her subordinates when these are used as instruments, when he or she has command responsibility;
d. for acts committed when determining the punishable offence, for example, by giving an order, in which case the determinator and the person executing the order, in other words the material executor, are held responsible.
In relation to criminal responsibility for an omission, the person to be held responsible is the one that had the legal duty to prevent the commission of a crime and, this being possible, did not do so.
In relation to the international responsibility of individuals, the International Criminal Court can hold every individual responsible for the commission of crimes, once the procedural phases have been completed, when it has been established that the person has committed any of the crimes contained in the [1998] Rome Statute, namely:
(i) genocide;
(ii) war crimes;
(iii) crimes against humanity;
(iv) crime of aggression, when it is defined.
In fact, the ICC Statute establishes the ways in which a person can be held responsible and the different kinds of command responsibility. 
Colombia, Manual de Derecho Operacional Manual FF.MM. 3-41 Público, Primera Edición 2009, Comando General de las Fuerzas Militares, aprobado por el Comandante General de las Fuerzas Armadas por Disposición Número 056, 7 December 2009, pp. 156–157.
[footnotes in original omitted]
The manual further states:
When, owing to an act or omission, the OLA [Operational Legal Adviser] contributes to the planning or execution of conduct that constitutes an infraction of IHL or grave violation of human rights, he or she will be subjected to the ordinary criminal justice system. 
Colombia, Manual de Derecho Operacional Manual FF.MM. 3-41 Público, Primera Edición 2009, Comando General de las Fuerzas Militares, aprobado por el Comandante General de las Fuerzas Armadas por Disposición Número 056, 7 December 2009, p. 147.
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. 
Colombia, Penal Code, 2000, Articles 135–164.
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. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, §§ 6.4.1.–6.4.4.
[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. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 8.1.
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.” 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 68.
In 2009, in the Constitutional Case No. C-240/09, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of article 14 of the Law on Judicial Cooperation (1997) and article 162 of the Penal Code (2000), which concern the recruitment of children and their forced participation in hostilities. The Court stated:
On the other hand, Law 728 of 2002 “Extending the validity of Law 418 of 1997, as extended and modified by Law 548 of 1999, and modifying some of its provisions” [1997 Law on Judicial Cooperation] grants minors who take part in the armed conflict the status of victims of political violence.
In judgment C-203 of 2005 … faced with the constitutional question as to whether minors, in view of the recognition provided by this law, can be both victims and perpetrators subject to criminal prosecution by the State, the Court held that, despite the status of victim and that of object of protective action by the State apparatus, it is constitutional to prosecute minors who were members of armed groups outside the law for crimes they might have committed [during that membership]. To exclude, ab initio, regardless of the circumstances of each case, all criminal responsibility for these acts committed during the conflict because of the fact that these minors were forcibly recruited would constitute, in the view of the Chamber, … a disregard for the rights of other victims created, in turn, as a result of those acts. It was said that it is more in accordance with the [1991] Constitution and international obligations of the State to assess, in each concrete case, the impact of the status of victim of forced recruitment on their individual criminal responsibility, as well as that of other forms of pressure and coercion that might have been exerted on this minor. 
Colombia, Constitutional Court, Constitutional Case No. C-240/09, Judgment, 1 April 2009, § 6.2.4.
[emphasis in original]
In 2010, in the Plazas Vega case, Colombia’s Third Criminal Court of the Specialized Circuit of Bogotá stated:
The perpetration-by-means theory was created by Claus Roxin … and is based “in the thesis that, in a criminal organization, those people behind the scene who order crimes with autonomous command can, in this case, be responsible as perpetrator-by-means, even when the immediate perpetrators are also punished as fully responsible perpetrators”.
With this, Roxin created a third form of perpetration-by-means, which is based on the control over an organized apparatus of power, which goes beyond the assumptions traditionally adopted by the doctrine, according to which the [immediate] perpetrator is acting under coercion or error and therefore is not responsible.
Accordingly, in general terms, the “conditions for the control over the organization” are as follows: (i) “command authority” … , (ii) “the disengagement of the apparatus of power from the legal order … ” … , (iii) “the fungibility of the immediate perpetrator” … , and (iv) “the immediate perpetrator’s considerably strong inclination to commit the act” …
In view of the above, the difference between perpetration-by-means and co-perpetration is clear … : (1) perpetration-by-means is based on a pyramidal hierarchical structure where the person behind the scene is at the apex or at an intermediary command level, where he or she is above the immediate perpetrator. Co-perpetration, on the contrary, is structured horizontally, without any subordination among the perpetrators, and depends on their common agreement. (ii) The joint commission of the crime, on which co-perpetration is predicated, is absent in perpetration-by-means, as the person who gives the order does not know the person who will execute it. They have no direct contact, are not at the same level nor do they decide anything together. … (iii) … [C]o-perpetration is based on a joint functional control over the conduct, while perpetration-by-means is based on a control held by the person behind the scene, who “controls the organization, that is, has the possibility to influence to ensure that the result will be produced without having to execute the conduct himself or herself, but rather by using the apparatus of power at his or her disposal”.
The theory’s acceptance in national case law
… High courts of other States, when trying … human rights’ violations where several perpetrators are involved, have adopted Claus Roxin’s theory in order to hold responsible those who have command authority in an organized structure of power and do not directly execute the punishable act. …
This legal criterion is also present in our country, where … the honorable Supreme Court of Justice has adopted the above thesis in order to provide a more reasonable solution in those cases in which the perpetrator makes use of a network outside the law to carry out the execution of extremely serious crimes. This allows for a new interpretation of article 29(1) of the Penal Code, which relinquishes the restrictive classification of perpetration-by-means, which considered the material perpetrator not responsible because of uncorrectable error or insurmountable duress. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 246–252.
[footnotes in original omitted; emphasis in original]
The Court held: “According to the above, the Court will declare Luis Alfonso Plazas Vega as perpetrator-by-means responsible for the … enforced disappearance of the following victims”. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, p. 286.
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 located 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 the 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]
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. Regarding reparations, the Court stated:
185. … It is imperative that international humanitarian law be respected, not only by the regular armed forces of the State but also by the other actors in this conflict – the subversive and paramilitary groups. “International tribunals have attributed criminal responsibility for violations of international humanitarian law which constitute war crimes to members of both State armed forces and non-State organized armed groups involved in internal armed conflicts … ”.
186. The serious harm inflicted upon the civilian population by paramilitary groups in general, and by the Fronteras Front in particular, was executed with knowledge and intent. …
295. Regarding the cases [attributed to the accused], the Chamber finds that there were three forms of participation:
As perpetrator
296. Article 29 [of Colombia’s 2000 Penal Code] defines as an immediate and single perpetrator the person who undertakes the conduct by himself or herself. Also known as the acting subject, he or she is the individual who executes the conduct with knowledge and intent, whether by action or omission, as described in the criminal provision. …
As perpetrator-by-means
298. The same article 29 includes the concept of the perpetrator-by-means. Qualified as such is the person who undertakes the conduct using another person as an instrument … The interpretation traditionally adopted by Colombian case law … made it impossible to apply this form of perpetration to members of organized armed groups outside the law, directed by the guerrillas and self-defence forces …
299. This approach was modified by the Supreme Court of Justice …[w]hich stated:
300. Certainly, when it comes to the criminal phenomenon of organized power structures or apparatus, the crimes committed are attributable to their leaders – managers, sponsors, commanders – as perpetrators-by-means; to their coordinators while they are in charge – commanders, group leaders – as co-perpetrators; and to the direct perpetrators or subordinates – soldiers, troops, patrols, guerrillas or militia members – because the entire chain acts with true knowledge and control over the facts …
302. Perpetration-by-means through an “organized power apparatus” is a theory proposed by [Claus] Roxin, which is characterized by the fact that the person behind the scenes has at his or her disposal a machinery of personnel that helps in the commission of crimes without him or her having to delegate the execution of these crimes to the autonomous decision of the immediate perpetrator. …
303. According to Professor Claus Roxin, … four conditions have to be fulfilled for the accused to be considered a perpetrator-by-means: “command authority, disengagement of the power apparatus from the legal order, fungibility of the immediate perpetrator and the immediate perpetrator’s strong inclination to commit the act”.
316. Assessing each of the acts in question, it could be established that the direct perpetrators were part of a structure in which [the accused] had command authority. Thus, he is certainly the perpetrator-by-means, especially since it was demonstrated that the action of the accused consisted of giving the order for the murders to be committed, in compliance with the objectives of the organization, or transmitting this order when it came from superior commanders …
As co-perpetrator
318. Finally, article 29(2) of the Penal Code describes co-perpetration and indicates its elements. According to the Criminal Chamber of the Supreme Court of Justice, co-perpetration requires certain subjective and objective elements. In this respect, the Court stated:
The subjective aspect of co-perpetration means that:
319. One. The perpetrators reach an agreement, plan the commission of the crime and decide together to perpetrate it.
320. Two. Each of them feels that they are part of a collective with a specific purpose, … that they perform tasks with functional interdependence.
The objective aspect includes:
321. One. The joint functional control over the fact, which means that the various individuals, without any submission, dependence or subordination among themselves, are directed to undertake, to the same end, an essential conduct, which is seen in relative rather than absolute terms.
323. Two. Significant contribution during the execution of the act, that is, contribution through something transcendental for its commission, an important service that each of the perpetrators renders to the criminal action. 
Colombia, High District Court of Bogotá, El Iguano case, Judgment, 2 December 2010, §§ 185–186, 295–296, 298–299, 302–303, 316, 318–321 and 323.
[footnotes in original omitted]
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
217. The Constitutional Court of Colombia, in its decision C-203/05 [Constitutional Case No. C-203/05], stated that demobilized minors “are deemed victims (…) but that status does not exempt them per se from all criminal responsibility [and] (…) neither the Constitution [(1991)] nor international law are set aside when bringing demobilized minors to trial in order to determine their criminal liability”.
218. That being the case, adolescents between the ages of 14 and 18 years who committed crimes when they were members of armed groups could be subject to criminal charges. However, there have been no such proceedings to date, in application of the principle of prosecutorial discretion, as explained below.
221. The question of the liability of children and adolescents who may have committed criminal offences during their participation in illegal armed groups is addressed in conformity with article 175 of the Code on Children and Adolescents [(2006)]. This article deals with the principle of prosecutorial discretion, which allows the prosecution to waive criminal proceedings against adolescents who were in any way involved in illegal armed groups or participated directly or indirectly in hostilities, armed action, or crimes committed by illegal armed groups, provided that:
(a) [t]he adolescent’s decision that it was in his or her best interests to join an illegal armed group was based on the social, economic and cultural conditions of his or her environment;
(b) [t]he adolescent’s social, economic or cultural marginalization was such that he or she had no other way to pursue his or her personal development;
(c) [t]he adolescent was unable to seek out other forms of social participation;
(d) [t]he adolescent joined or participated in such a group by force, threat, coercion or constraint. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 217–218 and 221.
[footnote in original omitted]
In a footnote quoting article 175 of the 2006 Code on Children and Adolescents, Colombia also stated: “The principle of prosecutorial discretion shall not apply in cases that may involve grave breaches of international humanitarian law, crimes against humanity or genocide under the [1998] Rome Statute.” 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, § 221, footnote no. 59.
In 2010, Colombia’s National Council for Social and Economic Policy approved the Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups. The Policy states:
The country has also had an important jurisprudential development with regard to the protection of children and adolescents. The Constitutional Court, in its Case No. C-203 of 2005, stated that this population should be seen as victims of the crime of illegal recruitment, although this does not exempt them from their criminal responsibility. 
Colombia, National Planning Department, National Council for Social and Economic Policy, Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups, CONPES Document No. 3673, 19 July 2010, p. 19.
[footnote in original omitted]
Colombia’s Basic Military Manual (1995) provides: “The nation can exact from the public servant who caused the injury the amount of the injured party’s indemnification.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 36.
Colombia’s Justice and Peace Law (2005) states:
ARTICLE 2. SCOPE, INTERPRETATION AND APPLICATION OF THE LAW. This law regulates the investigation, prosecution, punishment and judicial guarantees of individuals connected to organized armed groups outside the law who have been perpetrators of or participants in criminal offences committed during and on the occasion of their membership of these groups, and who have decided to demobilize and make a decisive contribution to national reconciliation.
ARTICLE 24. CONTENT OF THE JUDGEMENT. According to the criteria established by law, the sentence … shall include … the obligations of moral and economic reparation to the victims and the confiscation of assets for such reparation.
ARTICLE 37. RIGHTS OF VICTIMS. The State must ensure the access of victims to the administration of justice. In furtherance of the above, the victims shall have the right:
3[7].3. To prompt and full reparation for the harm suffered, made by the perpetrator of or participant in the offence.
ARTICLE 42. GENERAL DUTY TO MAKE REPARATION. Members of armed groups who benefit from the provisions of this law have a duty to make reparation to the victims of the punishable conduct for which they were convicted by judicial decision.
ARTICLE 44. ACTS OF REPARATION …
In order to have the right to benefit from conditional release, the convicted person must give assets to the Victims’ Reparation Fund, which are to be used for reparations; satisfactorily carry out the acts of reparation that were imposed on him or her; cooperate with the National Commission for Reconciliation and Reparations or sign an agreement with the High District Court ensuring compliance with his or her obligations to make reparation.
Acts of full reparation include the following:
4[4].1. The transfer to the State of assets to be used in reparation to victims. 
Colombia, Justice and Peace Law, 2005, Articles 2, 24, 37, 42 and 44.
The Law also states:
This law aims to facilitate the peace process and the individual or collective reintegration into civilian life of members of armed groups outside the law, while guaranteeing the victims’ rights to truth, justice and reparation.
Organized armed groups outside the law are understood to mean guerilla or self-defence groups, or a significant and integral part of these groups, such as blocs, fronts or other modalities of these organizations, as addressed in Law 728 of 2002 [which amends, inter alia, article 8 of the 1997 Law on Judicial Cooperation to read, in its paragraph 1: “In accordance with international humanitarian law, and for the purposes of this law, armed groups outside the law are understood to mean those which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations.”]. 
Colombia, Justice and Peace Law, 2005, Article 1.
Colombia’s Decree on Reparation to Victims of Armed Groups (2008) 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 [Law on Judicial Cooperation, as amended] “victims of political violence are those persons belonging to the civilian population who suffer damage 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.”
That Article 45, item 1, of Law 975 of 2005 [the Justice and Peace Law] states: “Victims of armed groups outside the law may obtain reparation through a claim to the Superior Tribunal of the High District Court … ”;
That Article 16, item 1, of Decree No. 3391 of 2006 states: “… Victims of crimes committed by members of organized armed groups outside the law, to whom Law 975 of 2005 is applicable, are entitled to reparation for the harm suffered …”;
That, in addition to the judicial reparation provided for in Law 975 of 2005, it is feasible that the State, in accordance with the principle of solidarity and the residual obligation to make reparation, can establish an administrative procedure for early reparation to victims of organized armed groups outside the law, without prejudice to the obligation of perpetrators to make reparation and the State’s right of recourse against the latter;
That, in order to guarantee the right of victims to obtain reparation, several fundamental principles provided for in international instruments must be taken into account, namely:
When the person responsible for a violation cannot or is not willing to comply with his/her obligations, States must make every effort to compensate the victim.
When the State has compensated a victim for a violation which is not attributable to it, the one who has committed [such violation] must compensate the State;
That the Constitutional Court stated, in Case C-370 of 2006: “Thus, the first parties to have the obligation to make reparation are the perpetrators of the offences; subsidiarily, the specific group of which the perpetrators were members, pursuant to the principle of solidarity. Before resorting to the resources of the State to make reparation to the victims, it is necessary to demand that the perpetrators of the offences, or the bloc or front of which they were members, respond with their own assets for the harm caused to the victims of their offences.” It stated also that: “The State’s role in this sequence is merely residual, so that it can assure the rights of victims, in particular those who do not have a judicial decision establishing the amount of compensation to which they are entitled (Article 42, item 2 of Law 975 of 2005), and in case the resources of the perpetrators are not sufficient”[.] 
Colombia, Decree on Reparation to Victims of Armed Groups, 2008, preamble.
Colombia’s Transitional Justice Law (2010) states:
Object of the law. This law aims to contribute to the achievement of lasting peace and to the satisfaction of the guarantees of truth, justice and reparation, within the framework of transitional justice, in relation to the conduct of demobilized members of organized armed groups outside the law who, as a consequence of their membership of such groups, have committed [certain] offences … as well as to promote their reintegration into society. 
Colombia, Transitional Justice Law, 2010, Articles 1 and 2.
The law also states:
The competent judicial authority will decide … on the conditional suspension of the sentence … if the following requirements are to be fulfilled [by the convicted person]:
3. To provide full reparation for the damage caused by the offences for which he or she was convicted within the framework of this law, unless the person proves to be unable to afford to do so. 
Colombia, Transitional Justice Law, 2010, Article 7.
In 2006, in the Constitutional Case No. C-370/06, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of Colombia’s Justice and Peace Law (2005). Regarding the obligation of members of organized armed groups to make reparation to the victims of offences committed by these groups, the Court stated:
6.2.4.1.11. … [T]here does not seem to be a constitutional reason allowing for an exception of the general principle according to which anyone who causes a wrongful damage is obliged to make reparation … Secondly, … the State … is not authorised to forgive – neither criminally nor civilly – the person who committed heinous crimes or the person responsible for acts of massive or systematic violence. Completely exempting from civil liability a person who caused such damage is equivalent to granting full amnesty … Finally, it seems constitutionally disproportionate to renounce the pursuit of the assets of those responsible for such damage, at least in those cases where it can be proved that the persons responsible have vast fortunes, while those who suffered the damage find themselves in difficult situations of poverty and rootless provoked by the damage itself …
6.2.4.1.12. … [N]ational and international rules, doctrine and case law have considered that making economic reparation [to victims] with the assets of the perpetrator is one of the necessary conditions for guaranteeing the rights of the victims and promoting the fight against impunity. …
6.2.4.1.13. Indeed, in the context of a transition to peace, it could seem appropriate that a person responsible for offences who decided to participate in a negotiation process should keep part of his or her assets, so to allow him or her to live in dignity and to fully reintegrate into a democratic society and the Rule of Law. However, there is no constitutional basis for the State to completely exempt the civil liability of those who caused the harm for which reparation has to be made … Otherwise, it would result in a sort of amnesty for civil liability … Therefore, it is in conformity with the Constitution to conclude that the perpetrators of this kind of offence should respond with their own assets for the damage they caused, as long as the ordinary rules of procedure, which provide for a limitation to the pecuniary liability with the aim of preserving a dignified existence for the responsible person, are observed …
6.2.4.1.16. For the above reasons, it follows that, according to the Constitution, members of organized armed groups outside the law to which Law 975 of 2005 [the Justice and Peace Law] applies respond with their own assets in order to compensate the victims of the criminal offences for which they were convicted.
6.2.4.1.18. … Certainly, assets illegally acquired do not belong to them [members of illegal organized armed group] and, therefore, their delivery does not imply a transfer of property but rather a return to their true owner - through the restitution of the asset - or to the State. However, their legally acquired assets shall belong to them as long as there is no judicial sentence ordering their delivery …
6.2.4.1.20. Thus, the Court finds that, as the beneficiaries of the law must respond with their own assets for the damage caused, there is certainly no reason to impede that precautionary measures fall on their legally acquired assets. Indeed, such a prohibition would reduce the effectiveness of actions adopted by the State towards making full reparation to victims. 
Colombia, Constitutional Court, Constitutional Case No. C-370/06, Judgment, 18 May 2006, §§ 6.2.4.1.11– 6.2.4.1.13, 6.2.4.1.16, 6.2.4.1.18, and 6.2.4.1.20.
With regard to the civil liability of members of organized armed groups for criminal offences, the Court stated:
6.2.4.4.2. The Court observes that the full satisfaction of the victims’ right to reparation requires that reference be made to the responsibility of organized armed groups outside the law which commit criminal offences.
6.2.4.4.7. It follows that the causality between the punishable facts brought to a court and the activities of specific armed groups which, after having organized themselves for the commission of crimes, decide to demobilize, is particularly relevant for the law in question. This relationship between the activity of individuals who demobilize and their membership of a specific group, within which they committed crimes, generates a causal link between the activity of the specific group and the damage individually or collectively caused by this group … Although criminal responsibility continues to be individual, the civil liability which derives from the punishable conduct admits the joint responsibility, not only among those who are criminally responsible but also with regard to those who are identified, by a judicial decision, as members of the specific armed group. [Such a group is] understood as the front or bloc to which the fact that caused the damage is imputed, due to a causal link between the criminal conduct which caused the damage and the concrete activity of this specific group acting outside the law, of which the demobilized persons are members. All punishable facts falling within the scope of Law 975/05 must have been committed during and on the occasion of membership of the armed groups by the demobilized individuals. This is on the basis of the civil liability of the specific group under the umbrella of which the offences tried were committed by its members …
6.2.4.4.12. ... [T]he Court will introduce a condition to the provision [in question] according to which those who were identified by a judicial decision as members of a specific armed group respond civilly, … with their own assets, for the damage caused to victims by other members of the bloc or front of which they were members, and not only for the damage caused by the offences for which they were individually convicted. 
Colombia, Constitutional Court, Constitutional Case No. C-370/06, Judgment, 18 May 2006, §§ 6.2.4.4.2, 6.2.4.4.7 and 6.2.4.4.12.
In 2009, in the Palacios Copete and others case, Colombia’s First Criminal Court of Rionegro Circuit stated:
The execution of an act of criminal conduct is a source of civil liability. Therefore, the person convicted of a crime must also be ordered to compensate for the damage caused by his/her illegal conduct. This is provided for in article 94 of the [2000] Penal Code and article 2341 of the Civil Code.
There are two possible types of damage caused by … an act of criminal conduct: material and moral damage. Criminal rules oblige the perpetrator of an act of illegal conduct to make reparation for the damage caused[.] 
Colombia, First Criminal Court of Rionegro Circuit, Palacios Copete and others case, Judgment, 5 February 2009, p. 97.
The Court also stated:
It is well known that there is an armed conflict on Colombian territory – although sometimes, the conflict exceeds the Colombian border – between the State, which tries to preserve constitutional principles and purposes, and a number of insurgent groups outside the law, which have tried to destabilize the basic institutions of our State and society by means of violent acts and aided by drug trafficking and weapons. …
It was proved that no combat took place between the National Army and a group of insurgents and that, instead, soldiers … forcibly took [the victim] from the village of Argelia at 10.30 p.m. on 4 October … and murdered him at 4.30 a.m. on 5 October … Thus, the elements of the crime of murder of a protected person … are fulfilled. 
Colombia, First Criminal Court of Rionegro Circuit, Palacios Copete and others case, Judgment, 5 February 2009, pp. 84 and 88.
[emphasis in original]
In 2010, in the Plazas Vega case, Colombia’s Third Criminal Court of the Specialized Circuit of Bogotá stated:
According to article 56 of Law No. 600 of 2000, in all criminal proceedings where it is proven that the conduct investigated caused damage, the [judge] must sentence the responsible person to pay for the damage caused by the crime.
This provision also states that there must be no such sentence in cases where it is established that the person who suffered the harm has already taken independent civil legal action or demanded reparation through administrative proceedings. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, p. 296.
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 located 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 these rescued persons have never been traced.
[I]t must be said that … at the time the acts 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 the 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.
within 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, 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]
In 2010, in the Diego Vecino and Juancho Dique case, the Justice and Peace Chamber of Colombia’s High District Court of Bogotá convicted two members 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:
VIII.7.2. Principle of joint responsibility among all members of an armed group for the harm caused by acts of its members during and on the occasion of their membership of the group
252. … [T]he Constitutional Court not only holds that the members of the organized armed groups outside the law to which Law 975 [2005 Justice and Peace Law] refers will respond with all their assets, whether lawfully or unlawfully obtained, for the harm caused through the crimes they have committed, it also affirms the principle of joint liability among all members of the group for the acts committed by its members during and by virtue of their membership of that organization. In its [2006] Case C-370, the Court emphasizes the civil liability of the organized armed group outside the law for all punishable acts falling within the scope of Law 975 that were committed during and by virtue of such membership.
253. Accordingly, the Constitutional Court states that the above-mentioned civil liability of the group for all pubishable acts assumes that the individuals responsible for the punishable acts are those who “are identified, by a judicial decision, as members of the specific armed group, understood as the front or bloc to which the fact that caused the damage is imputed”. This “joint pecuniary liability for damage caused to third parties”, said the Constitutional Court, is similar, for instance, to the liability in the context of de facto associations provided for in article 501 of [Colombia’s] Commercial Code. The members of de facto associations “shall respond jointly and unlimitedly for the transactions carried out” so that “third parties can enforce their rights against, and comply with their obligations in favour of, all or any of the de facto members.
299. As mentioned earlier, the Constitutional Court affirms the civil liability of the group for the punishable conduct which was committed and assumes that all members shall respond jointly. Accordingly, the Chamber does not see any reason for the joint pecuniary liability derived from the civil liability of the group to be limited to those members of the group who were granted the benefits provided for in Law 975.
300. On the contrary, the concept of civil liability of the group as defined by the Constitutional Court in Case C-370 assumes that all those persons who were convicted of collusion to commit a crime pursuant to article 340 [of the 2000 Penal Code], items II or III, because of having organized, promoted, armed or financed paramilitary armed groups to which Law 975 refers, shall respond jointly for all punishable acts falling within the scope of Law 975 that have been committed by members of the group during and on the occasion of their membership.
304. Finally, considering that some of the most important leaders of the paramilitary armed groups to which the [Justice and Peace Law (2005)] refers, such as brothers Carlos and Vicente Castaño, among others, died before they were able to be demobilized and their assets made available [for reparations] within the framework of this law and considering their position of leadership and their joint pecuniary liability for all the punishable acts committed by members of their armed groups during and by virtue of the membership of the latter, whenever they have been convicted of aggravated collusion to commit a crime, the Justice and Peace Unit of the Attorney General’s Office shall … bring … action for civil liability against their successors regarding the inherited legally obtained assets, with the aim of allocating these assets … for the payment of reparations that have been ordered pursuant to Law 975. As soon as the assets have been identified, the Office of the Attorney General, in order to ensure the assets will be available, shall request the adoption of precautionary measures. 
Colombia, High District Court of Bogotá, Diego Vecino and Juancho Dique case, Judgment, 29 June 2010, §§ 252–253, 299–300 and 304.
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:
399. Article 55 of Law 975 of 2005 states that the Social Solidarity Network, through the [Reparation] Fund, will be in charge of paying judicial compensation according to the allocated budget.
400. On the other hand, article 54 states that the resources of the fund will be composed of:
- all the assets or resources which are given to it … by those persons or illegal organized armed groups to which this law refers;
- resources from the national budget;
- national or foreign donations in money or in kind.
401. It is also important to take into account the 2008 report of the Office of the United Nations High Commissioner for Human Rights on the “Rule-of-Law Tools for Post-Conflict States: Reparations Programmes”, which distinguishes two funding models for reparations programmes: (i) a dedicated portion from the national budget and (ii) an extra-budgetary portion composed of two different sources: resources from illegal organized armed groups or [their members] on the one hand, and national and foreign donations on the other.
402. This second model presented by the High Commissioner, regarding the extra-budgetary portion, includes the following assets:
403. 1. Lawfully and unlawfully obtained assets of the demobilized individual, because he or she shall respond with his or her own assets for the harm caused. The demobilized individual shall keep only part of his or her assets to allow him or her to live in dignity and fully reintegrate into society.
404. 2. Assets from the armed group, that is, the front or bloc, [owing to the principle of] joint liability. This means those who “are identified, by a judicial decision, as members of the specific armed group, understood as the front or bloc to which the fact that caused the damage is imputed”.
405. As mentioned in a prior decision, these assets are insufficient to make reparation to the victims, not only because of the limited amount of properties that are given by the members, but also because of the way these assets are managed by Social Action …
406. With regard to the first problem mentioned above, the Chamber recalls the judgment by the Constitutional Court in … Case No. 370/06 of 2006, according to which the organized armed groups to which Law 975 refers and their leaders “comprise complex structures and organizations” and “the assets unlawfully obtained have been hidden or transferred to nominal heads or even to third parties in good faith, through whom the assets are ‘laundered’”. The Chamber reiterates to the Office of the Attorney General the need to establish a unit dedicated exclusively to analysing national and international financial operations, securities and money laundering; identifying assets in the name of third parties and hectares of land taken from the victims – not only victims of forced displacement but all those persons who had to trade their lands for extremely low prices owing to the armed conflict …
415. In addition to the above-mentioned assets and following the guidelines already established by this Chamber in a prior decision, the Reparation Fund shall also comprise the following:
1. Assets from persons convicted of aggravated criminal association owing to their membership of a self-defence group …
2. Assets from persons being investigated … under identical conditions …
3. Assets of members of the self-defence forces who died before being demobilized but who had already been convicted owing to their membership of paramilitary groups.
417. Finally, … the Chamber reiterates its statement in the judgment in [Diego Vecino and Juancho Dique case, 29 June 2010] with regard to the following:
3. To insist on the need for the Office of the Attorney General … to establish international cooperation for the identification of financial assets belonging to natural or legal persons involved with trafficking in drugs and arms, who collaborated with this illegal armed organization. 
Colombia, High District Court of Bogotá, El Iguano case, Judgment, 2 December 2010, §§ 399–406, 415 and 417.
[footnotes in original omitted]
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
183. Another important development is Law No. 975 of 2005 [the Justice and Peace Law], which contains provisions for the reintegration of members of organized armed groups outside the law who effectively contribute to achieving national peace, and other provisions for humanitarian agreements. After an extensive process of consultations and discussion, which lasted at least two years, with the participation of the national and international community, the Congress adopted this instrument proposed by the national Government, whose aim is to provide a framework that makes viable the individual or collective reintegration of members of organized armed groups operating outside the law who effectively contribute to the attainment of national peace, including guerrillas and paramilitaries, in keeping with the rights of victims to truth, justice and reparations.
184. This body of law … for the first time recognizes in law the right of victims to know the truth and reiterates the recognition of their rights to justice and full reparations. Those seeking the benefits established by this law … must compensate the victims with their assets, legal and illegal. …
226. With regard to reparations to victims, demobilized individuals have to date handed over 4,619 items of property to the reparations fund.
236. Victim Reparations Programme. In parallel with the demobilization of organized armed groups outside the law, the Government has focused its attention on the victims of violence and has designed an administrative reparations programme …
237. It should be noted that the programme is not at odds with the compensation which persons found criminally liable must make to victims following a court ruling. 
Colombia, Sixth periodic report to the Human Rights Committee, 2 June 2009, UN Doc. CCPR/C/COL/6, submitted 10 December 2008, §§ 183–184, 226 and 236–237.