Practice Relating to Rule 156. Definition of War Crimes
Colombia’s Basic Military Manual (1995) provides: “Grave breaches of IHL committed by the parties to the conflict constitute war crimes or crimes against humanity.”
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 that “the gravest breaches of IHL have been penalized at the international level as war crimes”.
In 2010, in the Fuentes Montaño case, the Criminal Appeals Chamber of Colombia’s Supreme Court of Justice revised the first and second instance judgments to qualify as murder of protected persons the crime of which the defendant had been convicted. Regarding the requirement that an offence, to be considered a war crime, needs to be connected to an armed conflict, the Court held:
[T]he first and second instance judgments, despite finding it was proved that the murders of four members of the Kankuamo ethnic group were committed by members of the United Self-Defence Forces of Colombia in the context of one of their armed raids on the aforementioned population and in light of the alleged collaboration by some members of this community with the guerrilla members, argued that the deeds did not appear to be connected to a non-international armed conflict.
By analysing the above-mentioned position, the Chamber finds that Article 135 of the  Penal Code [regarding murder of protected persons] was not applied because of several wrong assumptions, such as:
(1) … the scope of application of such provision is limited to deaths caused in the context of combat. The criminal provision, however, requires that the deaths take place in the context or on the occasion of an armed conflict and that the victims are persons protected under IHL.
In the present case, the circumstances in which the multiple murders of members of the Kankuamo ethnic group took place on 8 December 2002 are described in detail. The murders occurred during a military operation carried out by more than 60 armed members of the United Self-Defence Forces of Colombia, as both instances considered proved.
Additionally, the evidence showed that these deeds did not constitute an isolated case: there are several references to the existence of other armed incursions into the same town of Atánquez and bordering areas by the United Self-Defence Forces of Colombia. There are also references to the permanent presence of their members in the area, who exercised control over the population, including through the use of roadblocks to stop and identify those who supposedly collaborated with the guerillas and then kill them. The murders referred to in these proceedings took place at the same time and in the same way as described here.
Therefore, the circumstances prior to and concomitant with the deeds referred to in these proceedings do not allow one to conclude that they were isolated from the situation of armed conflict that existed in the region at the time of the deeds. On the contrary, they seem clearly connected to the military actions undertaken by the irregular forces – self-proclaimed “self-defence forces” – which, for a long period, fought with rebels for control over that territory.
… [T]he deeds proved in the proceedings certainly indicate such a connection between the offence and the armed conflict, because of both the characteristics of the incursion into Atánquez on 8 December 2002 and the similar military operations that had been successively undertaken [in the area], before and after that incursion, by the irregular forces.
And, if the motives behind the killing of the indigenous people … on 8 December 2002, as well as many other similar killings on different dates, are proved to be connected to their supposed collaboration with the guerrillas. the connection of such killings to a non-international armed conflict is impossible to deny …
Precisely for this reason … , it is imperative to characterize such killings as murder of protected persons.
[emphasis in original]
In 2010, in the Ramirez Vivas and others case, which concerned the murder of a civilian by Colombian soldiers, Colombia’s Second Criminal Court of the Specialized Circuit of Popayán stated:
The main element of the crimes against persons and objects protected under international humanitarian law is “armed conflict” …
… [T]here is no doubt about the existence of an armed group outside the law, known as ONT FARC, which includes the Jacobo Arenas mobile column. According to Armed Forces of Colombia intelligence, this mobile column operates in Inzá, Páez, Totoró and Popayán …
The International Criminal Tribunal for the former Yugoslavia’s analysis of the circumstances of time, space and subject matter required for the application of international humanitarian law leads to the conclusion that, although, concretely, no armed confrontation is taking place, it is possible that deeds related to an armed conflict can still occur … Even where no combat is taking place, it is sufficient that the crime be related to the hostilities between the parties to a conflict. Likewise, it is sufficient that the perpetrator act in the furtherance or under the appearance of an armed conflict. The armed conflict does not need to be the cause of the commission of the crime, but the existence of the conflict must at least have played a substantial role in the perpetrator’s ability or decision to commit the crime, in the manner in which the crime was committed or in the purpose for which the crime was committed.
In view of the above, it is understood that the murder was committed in the context of an armed conflict, because tactical mission no. 204, called “Diáfano”, had, as its purpose, the neutralization of members of the mobile column Jacobo Arenas, ordinary criminals and members of criminal gangs involved in drug-trafficking in and around Torotó, Inzá and Riu Sucio. Therefore, the conduct was intended to counteract that illegal armed group.
In 2010, in the Constitutional Case No. C-936/10, Colombia’s Constitutional Court stated:
War crimes are, in general, such conduct that gravely or seriously breaches the laws and customs applicable in armed conflicts of either an international or non-international character. According to the [ICC] Elements of Crimes, adopted in September 2002 by the Assembly of States Parties to the Statute of the International Criminal Court, the common elements to all war crimes are: (i) the perpetrator committed a grave violation of international humanitarian law as provided for under the [ICC] Statute; (ii) the conduct took place in the context of an international or non-international armed conflict; (iii) the perpetrator was aware of the factual circumstances that established the existence of such conflict.
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:
190. In order to determine whether a certain conduct constitutes a war crime, the Chamber refers to the case law of international tribunals that have tried similar deeds, such as the International Criminal Tribunal for the former Yugoslavia. This stated that a war crime has been committed when the conduct has a (close or evident) functional link to an armed conflict.
191. This link depends on the relevance of the armed conflict with regard to: 1) the perpetrator’s ability to commit the crime; 2) his decision to commit it; 3) the manner in which it was committed; and 4) the purpose of the act. These four requirements demonstrate that the offences attributed to the [accused] have the nature of war crimes, as explained below:
192. With regard to the perpetrator’s ability to commit the crime, it is important to note that all 31 acts … are attributed to the paramilitary organization called Fronteras Front of the Catatumbo Bloc, as well as to [the accused] as the commander of this front …
194. The second requirement mentioned – influence on the perpetrator’s decision to commit the crime – is also demonstrated … [through] the intention [of the accused] to commit each of the acts [attributed to him], not only by allowing these acts to happen but also by directly committing some of them … and ordering the others. It is not without reason that the deeds are partially attributed to the military commander of the Front …
195. The manner in which the crimes were committed, which is the third requirement, corresponds to the behavioural pattern of the illegal armed organization, and of Fronteras Front in particular. The conduct of the members of the Front commanded by El Iguano … was characterized by its excessive cruelty. … [I]t was not sufficient for them to kill; they had to do it in a manner that caused terror among the population in general. The need to cause anxiety in the population through cruelty was the driving force of each of the 31 deeds [attributed to the accused].
196. Regarding the purpose of the conduct by the Fronteras Front … [this was to]: “fight the guerrillas at any time and place, armed or unarmed, in combat or out of combat, in uniform or civilian clothes, and to exterminate everything that disturbs the social order”.
197. In view of the analysed requirements, it is possible to conclude that the murders, torture, acts of terrorism, forced displacement, destruction of protected objects and extortion or arbitrary contributions attributed to the accused have a functional link to the internal armed conflict and, therefore, must be classified as war crimes
[footnotes in original omitted; emphasis in original]
Regarding the classification of social cleansing as a war crime, the Court stated:
203. … It is discussed whether deaths under the motive of “social cleansing” can be considered as a violation of IHL. According to the Prosecution, these are exclusively crimes against humanity, as they took place in a context different from the fight against armed actors. The Chamber disagrees with this reasoning.
206. Regarding the above-mentioned requirements pursuant to the case law of the International Criminal Tribunal for the former Yugoslavia, the Chamber finds that:
207. (i) The deeds committed by the Fronteras Front under the motive of “social cleansing” … were executed by the organized apparatus of power commanded by the accused … following the guidelines established by the commanders of the United Self-Defence Forces of Colombia, that is, they were committed by an actor of the armed conflict. …
208. (ii) “El Iguano”, as military commander of the Fronteras Front, intended to comply with the military policies of the House of Castaño, to the point that he himself ordered the urban fighters under his command to kill those persons indicated as being “thieves, addicts, homosexuals, etc.” Moreover, they left messages in the walls stating that they would continue assaulting persons considered to be undesirable by the community …
209. (iii) The manner in which the crimes were committed … follows the patterns established by the paramilitary organization …
210. (iv) The grave offences committed were part of the strategy of military and social consolidation of the Fronteras Front in Cúcuta and its metropolitan area. It constituted a military advantage for this front of the self-defence organization, because the tactic adopted was to remove the social base of the subversive forces, deprive them of informers and limit as much as possible their support among the population, rather than to engage in confrontations or combat. In essence, this was known as the strategy of “leaving the fish without water”. It cannot be ignored that … part of the population acted as informers to the front commanded by “El Iguano”. They themselves indicated those persons considered undesirable in their community – for instance, because those persons were considered delinquents. This organized apparatus of power progressively gained the sympathy of the population for its evil cause by “hearing the claims of the community” and deciding to kill the person reported.
211. (v) the victims: in all cases, the [persons] affected by the violent acts of the Fronteras Front did not take an active part in the hostilities, that is, they were part of the civilian population and, therefore, deserved the protection of humanitarian rules. Thus, the combatants of this armed structure decided to ignore the principle of distinction and violated the prohibition to attack persons protected under IHL pursuant to article 3 common to the four  Geneva Conventions, which … form part of the [Colombian] “constitutional block”.
212. On the other hand, the Chamber wonders: is it possible that those murders would have been committed by [the accused] if he had not been able to rely on an organized military apparatus such as the Fronteras Front, the Catatumbo Bloc and the self-defence organization? The answer is no. The relation between these acts and the armed conflict is integral … Therefore, the Chamber concludes that the deaths addressed here must also be classified as war crimes.
[footnotes in original omitted]
In 2010, in its Directive No. 11 providing guidance for judicial attorneys and disciplinary officials regarding the crime of murder of protected persons, Colombia’s Attorney General stated:
THIRD: The scope of the expression “acts committed on the occasion or because of an armed conflict”.
The Constitutional Court stated that: “In material terms, for a certain deed or situation that occurred in a place where there was no fighting to be regulated by international humanitarian law, it is necessary that such deed or situation is closely and sufficiently related to the waging of the conflict. Thus, not all wrongful acts that occur during an armed conflict are subject to international humanitarian law, but ‘only those acts sufficiently connected with the waging of hostilities are subject to the application of this law … It is necessary to conclude that this act, which could well be committed in the absence of a conflict, was perpetrated against the victim(s) concerned because of the conflict at issue’. International jurisprudence has provided different criteria for determining the existence of a close connection between a certain act or situation and the international or non-international armed conflict in the context of which it has occurred; thus, it has been pointed out that such close connection exists as long as the crime ‘is shaped by or dependent upon the environment – the armed conflict – in which it was committed’. For determining the existence of such a connection, the international tribunals have taken into account such facts as the perpetrator is a combatant, the victim is not a combatant, the victim is a member of the opposing party, the act may be said to serve the ultimate goal of a military campaign and the act was committed as part of the perpetrator’s official duties or in the context of such duties. The jurisprudence has also clarified that, in cases related to war crimes, it is sufficient to establish that ‘the perpetrator acted in furtherance of or under the guise of the armed conflict’; and that ‘the armed conflict does not need to have been the cause of the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed’”
FOURTH. The murder of a protected person in the jurisprudence of the Supreme Court of Justice
The Supreme Court of Justice stated in an appeals decision [footnote: Judgement of 21 September 2009]:
But simply finding that the conduct occurred at the heart of an armed conflict is not sufficient to qualify the offence as a violation of international humanitarian law; rather, it has to be proved that such conduct is connected to the conflict because its existence plays a substantial role in the perpetrator’s decision to carry out the prohibited conduct, in his or her ability to carry it out or in his or her manner of carrying it out. This requirement derives from the concept of war crimes as grave breaches of the rules regulating the parties’ conduct during an armed conflict.
Considering that the nature of the nexus required is not defined in the  Rome Statute nor in any other applicable international instrument, even less so in the domestic Penal Code, it is pertinent to turn to the concept established by judgments of international tribunals.
[footnotes in original omitted]