Practice Relating to the Prohibition of Certain Types of Landmines
Colombia’s Basic Military Manual (1995) states that the use of weapons which “cause unnecessary and indiscriminate, extensive, lasting and serious damage to people and the environment” is prohibited. It adds: “The use as well as the production, possession and importation of cruel means of war such as anti-personnel mines is banned.”
Colombia’s Operational Law Manual (2009) states:
4. Rules for the conduct of hostilities
c. Restrictions on the means and methods
The means and methods of warfare that can be used are limited. Weapons that cause superfluous injury or unnecessary suffering are prohibited. The general principles on the use of weapons establish that “the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited”. Likewise, “the use of weapons which are by nature indiscriminate is prohibited”.
In this sense, the use of the following weapons is prohibited:
- landmines, as defined in the  Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction; and
- landmines, as defined in the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996.
[footnotes in original omitted]
Colombia’s Penal Code (2000), as amended in 2002, states:
Any person who uses, produces, commercializes, retains and stockpiles, directly or indirectly, anti-personnel mines or vectors specifically designed for launching or dispersing anti-personnel mines, shall be punished with ten (10) to fifteen (15) years’ imprisonment, a fine between five hundred (500) and a thousand (1,000) minimum monthly salaries, and a five to ten year ban from holding public office.
Colombia’s Law Implementing the Ottawa Convention (2002) states:
In accordance with the Ottawa Convention, the State of Colombia pledges to destroy or ensure the destruction of all anti-personnel mines within the period set forth by Articles 4 and 5 of this Convention.
Notwithstanding the aforesaid and as an exception to Article 2 of the present law [which adds a provision to the Penal Code that penalizes the use, production, commercialization and stockpiling of anti-personnel mines], the Ministry of National Defence is authorized to:
Retain the anti-personnel mines which it may have stockpiled and which it may have been using on the first of March 2001 for the protection of military bases and of the energy and communication infrastructure. These anti-personnel mines must be properly marked and the protection of the civilian population must be guaranteed within the time period set forth by the “Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction”.
Transfer the anti-personnel mines in accordance with the destruction plan and for this purpose only.
Retain, stockpile and transfer a number of anti-personnel mines for the development of mine detection, mine clearance, or mine destruction techniques and for training in these techniques. This number of anti-personnel mines must not exceed a thousand (1,000) mines.
In 1995, in a ruling on the constitutionality of the 1977 Additional Protocol II, Colombia’s Constitutional Court stated in relation to the prohibition on the use of weapons of a nature to cause unnecessary suffering or superfluous injury:
Although none of the treaty rules expressly applicable to internal conflicts prohibits indiscriminate attacks or the use of certain weapons, the Taormina Declaration consequently considers that the bans (established partly by customary law and partly by treaty law) on the use of … mines … apply to non-international armed conflicts, not only because they form part of customary international law but also because they evidently derive from the general rule prohibiting attacks against the civilian population.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Weapons which because of their indiscriminate effects on the civilian population … [are prohibited] include anti-personnel mines … which have also been prohibited by specific treaty and customary norms that are applicable in internal armed conflicts and designed to limit their indiscriminate effects.
[footnote in original omitted]
In 1995, during a debate in the First Committee of the UN General Assembly, Colombia reiterated its “support for the initiative of an international moratorium on the production and transfer of anti-personnel land-mines, with a view to their complete elimination”.
Colombia participated in all of the preparatory meetings for the adoption of a treaty banning anti-personnel landmines, endorsed the Final Declaration of the Brussels Conference on Anti-personnel Landmines in June 1997 and took part in the Oslo negotiations in September 1997 which led to the adoption of a treaty banning anti-personnel landmines. It also voted in favour of the UN General Assembly resolutions in support of a ban on anti-personnel landmines in 1996, 1997 and 1998, as well as the relevant OAS resolutions.
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
For the purposes of compliance with the terms of the  Ottawa Convention [on Anti-Personnel Mines], the Ministry of Defence has established the following main objectives: the destruction of the stocks of antipersonnel mines held by the Armed Forces … As of now, all mines stockpiled by the Armed Forces have been destroyed apart from those which are used for training purposes as permitted under the Convention.
In 2008, in its fourth periodic report to the Committee against Torture, Colombia stated:
D. Measures for the promotion of IHL
(a) Action against anti-personnel mines
130. In order to deal comprehensively with the scourge of anti-personnel mines, which, since 1990, have claimed 5,003 military and civilian victims, and in accordance with IHL and the international obligations assumed through the ratification of [the 1977] Additional Protocol II to the  Geneva Conventions and the  Ottawa Convention [on Anti-Personnel Mines], the Government, through the Anti-personnel Mines Observatory of the Presidential Human rights and IHL Programme, drew up a State policy for the implementation of a National strategic plan for comprehensive action against anti-personnel mines (MAP) and abandoned unexploded ammunition (MASE). The plan was drawn up and agreed with the ethnic communities, civil society, NGOs and the international community. To that end, activities were undertaken in the following four areas: [i]nstitution building, comprehensive care for the population, compliance with the Ottawa Convention and communication strategy.
131. In the period 2002–2006, the objective of destroying 100 per cent of the mines (18,922 in number) in the Armed Forces arsenal was fully attained. Moreover, support was provided for the Anti-personnel Mines Observatory, through which 27 action plans were drawn up and launched in the areas of care for those affected and prevention of new occurrences. In that framework, training projects were launched, with international cooperation assistance, on accident prevention, rights promotion, civil society and training for civil servants in, inter alia
, handling and destroying such devices.
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
186. With regard to the landmines problem affecting several regions of the country by the action of organized illegal armed groups, Law No. 759 adopted in 2002 [the Law Implementing the Ottawa Convention] prescribes rules to implement the  Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction (Ottawa Convention) and lays down provisions aimed at eradicating their use in Colombia.
187. It should be recalled that Colombia signed the Ottawa Convention on 4 December 1997 and ratified it on 6 September 2000, becoming the 103rd State Party.
238. Land mines. In January 2001 the Antipersonnel Mine Monitoring Unit was established under the Presidential Human Rights and International Humanitarian Law Programme, under the supervision of the Vice President. The Unit is the Government mechanism for the implementation of the Ottawa Convention through different lines of action: care of survivors, prevention and awareness programmes, humanitarian de-mining, information management and institutionalization and sustainability of the National Mine Action Plan.
239. Ten years after the adoption of the Ottawa Convention, on 1 March 2001, Colombia has taken important strides in comprehensive mine action … In compliance with the commitments undertaken by ratification of the Convention, all mines stockpiled by the State have been destroyed.
242. Despite the efforts of the national Government, Colombia is currently the country with the highest number of victims of these inhuman devices, all because of organized illegal armed groups which continue to plague the country.
243. The presence of landmines is one of the most serious problems spawned by internal violence in Colombia and constitutes a serious threat to civilians.
[footnote in original omitted]
In 2009, Colombia’s National Council for Social and Economic Policy approved the National Policy for a Comprehensive Action against Anti-Personnel Mines, Unexploded Ordnance and Improvised Explosive Devices. The Policy states:
A. Public International Law
Owing to their nature, anti-personnel mines violate the rules of war regarding the distinction between civilians and combatants, as well as the prohibition of employing arms which “can cause superfluous injury or unnecessary suffering”. The international community has found that these weapons violate the most fundamental principles of humanity, because their cost in terms of lost human lives as well as of the people’s development opportunities far exceeds their limited military value …
A first international regulatory standard is Protocol II Additional to the Convention on Certain Conventional Weapons of 1980, which urges the States Parties to restrict the use of mines and other traps and anti-personnel devices. However, this instrument lacks sufficient mechanisms for monitoring compliance. Therefore, in the mid-1990s, several international actors promoted the adoption of a new piece of regulation directed at the definitive prohibition of anti-personnel mines and at providing effective mechanisms for the demining of contaminated territory. Thus, in 1997, 157 countries signed the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention) …
B. National Legislation
The legal structure of the Comprehensive Action against Anti-Personnel Mines (CAAM) in Colombia consists of two types of norms: on one side are those directly related to the regulation of the CAAM in Colombia, and on the other are the rules which support its execution, within the framework of longer-term activities.
Among the first, are those that ratify the international instruments related to the CAAM and provide for mechanisms for its compliance in the national territory. In these, special emphasis is put on compliance with Protocol II to the Convention on Certain Conventional Weapons and the Ottawa Convention, mechanisms are created to eradicate the use of mines in the territory, and an institutional framework is designed to coordinate the actions taken within the context of the CAAM (Table 1).
Table 1. Specific regulation in the area of CAAM in Colombia
Law No. 469 of 1998
Approves the “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, done in Geneva on 10 October 1980 and its four protocols”.
Law No. 554 of 2000
Approves the “Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, done in Oslo on 18 September 1997”.
Law No. 759 of 2002
Stipulates norms to ensure compliance with the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction and which sets forth provisions with the aim of eradicating the use of anti-personnel mines in Colombia.
Decree No. 2150 of 2007
Creates a Presidential Program in the Administrative Department of the Presidency of the Republic – Presidential Program for Comprehensive Action against Anti-Personnel Mines.
As mentioned in the National Policy for a Comprehensive Action against Anti-Personnel Mines 2009–2019, the current problem of landmines in Colombia concerns the systematic use of these devices by illegal armed groups (IAGs) in clear violation of human rights, international humanitarian law, national legislation and international rules on the matter. Unlike countries where the issue of mines is a legacy of past confrontations, in Colombia there is no certainty that the territory will cease to be contaminated and, therefore, the problem is far from being contained. Thus, given the continuing violence by the IAGs and the destructive power of these devices, anti-personnel mines constitute a growing threat to the well-being and quality of life of affected communities.
Faced with this situation, the Colombian legal system found it necessary to develop policy instruments allowing the State to comply with its obligations under the Ottawa Convention and guarantee to the victims of anti-personnel mines the effective enjoyment of their rights.
In particular, Law 759 of 2002 highlights the obligation on the CINAMAP [National Intersectoral Commission for Action against Anti-personnel Mines] to present to the CONPES [National Council for Social and Economic Policy] a document setting out the actions that the Colombian State must undertake in relation to the application of the Ottawa Convention, in particular regarding humanitarian demining, assistance to victims, the promotion and protection of human rights and IHL, the destruction of stored anti-personnel mines, and awareness-raising campaigns.
[footnotes in original omitted]
The Policy defines anti-personnel mines as follows:
Anti-personnel mine (APM):
Device that explodes by the presence, proximity or contact of a person and that might incapacitate, injure or kill one or more persons … Homemade anti-personnel mines are called Improvised Explosive Devices
[emphasis in original]