Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section A. The principle of distinction
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”.