Norma relacionada
Colombia
Practice Relating to Rule 89. Violence to Life
Colombia’s Circular on Fundamental Rules of IHL (1992) states: “Persons hors de combat and who no longer participate directly in hostilities have the right to respect for their lives and physical integrity.”
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 1.
The Circular also states: “Captured persons and civilian persons who are in the power of the adverse Party have the right to respect for their life.”
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 4.
Colombia’s Basic Military Manual (1995) provides that, in both international and non-international armed conflicts, the lives of all persons hors de combat shall be respected.
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, pp. 20, 22 and 29.
With regard to internal armed conflict, the manual contains the provisions of common Article 3 of the 1949 Geneva Conventions. Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 42.
Colombia’s Soldiers’ Manual (1999) and Instructors’ Manual (1999) provide that the right to life is a human right which the armed forces must respect.
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 10; Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, pp. 8 and 21.
Colombia’s Penal Code (2000) imposes a criminal sanction on anyone who, during an armed conflict, carries out or orders the carrying out of the killing of a protected person.
Colombia, Penal Code, 2000, Article 135.
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states:
The casualties caused outside combat or if the use of force is not in accordance with the criteria of absolute necessity and proportionality are considered violations of the right to life. In the field of international human rights law, violations of the right to life encompass extrajudicial, summary or arbitrary executions. These acts also constitute crimes within the competence of the International Criminal Court by virtue of the Rome Statute.
Colombia, Directive No. 10, 2007, § IV.
In 1995, Colombia’s Constitutional Court held that the prohibitions contained in Article 4(2) of the 1977 Additional Protocol II were consistent with the Constitution, since they were not only in harmony with the principles and values of the Constitution, but also practically reproduced specific constitutional provisions.
Colombia, Constitutional Court, Constitutional Case No. C-225/95, Judgment, 18 May 1995.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
As members of the civilian population affected by internal armed conflicts, children and adolescents have the right to respect for the fundamental guarantees granted to all persons not actively participating in hostilities, as established by Article 3 common to the [1949] Geneva Conventions, which provide at minimum a right … to not suffer violence against their life … In accordance with this article, in cases of non-international armed conflicts in the territory of one of the Parties, each party to the conflict shall be bound to apply certain minimum guarantees without affecting their legal status as parties to the conflict, including: (1) Persons taking no active part in the hostilities shall be treated humanely in all circumstances without adverse distinction based on discriminatory criteria; (2) To this end, the following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (including children): (a) Violence to life and person, in particular murder.
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 5.4.2.2.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of homicide.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]The Court also held:
The fundamental guarantee prohibiting homicide within the context of non-international armed conflicts … strives to protect non-combatants, that is, civilians and persons hors de combat, as long as they do not take a direct part in hostilities. The norm may be found in a number of international treaties – Article 3 Common to the 1949 Geneva Conventions and Article 4 of the [1977] Additional Protocol II, in particular – and is considered part of customary international humanitarian law applicable in internal armed conflicts. In fact, the prohibition against homicide of civilians and persons hors de combat is one of the first guarantees under international humanitarian law.
The prohibition against homicide of civilians and persons hors de combat is a ius cogens norm in itself. It must be borne in mind that this prohibition under international humanitarian law corresponds to one of the non-derogable guarantees under international human rights law – the right to life– which proves its peremptory nature.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnotes in original omitted][C]ontrary to the appeal arguments, the court of the first instance repeatedly outlined in a detailed and analytical manner all the reasons it relied on when it concluded that the accused M.N.K., already on 9 September 1993, had information about unlawful actions committed by the units subordinated to him. Based on the presented evidence, including the testimony of the appellant himself, the court of the first instance concluded that it is logical that by making a field trip to the area where seven civilians were killed on 9 September 1993, he learnt about at least one of these murders, which, in the view of the court of the first instance, is sufficient to establish his criminal responsibility given that as a commander, after having obtained this information, he had a duty to take measures to prevent these unlawful actions from being committed again … Given that the accused M.N.K. failed to exercise his legal duties both in relation to civilians … and in relation to prisoners of war (POWs), the court of the first instance found him guilty of the criminal offense of War Crimes against Civilians under Article 120(1), as read with Article 28 of the BCCRC [Basic Criminal Code of the Republic of Croatia], committed by omission … and of the criminal offense of War Crimes against Prisoners of War.
Croatia, Supreme Court of the Republic of Croatia, M.N.K. and R.A. case, Judgment, 18 November 2009, p. 6.
In a press release issued in 1980, the Colombian Ministry of National Defence denounced the killing of an army officer after he had been taken prisoner by the Fuerzas Armadas Revolucionarias de Colombia (FARC).
Colombia, Ministry of National Defence, Press Bulletin No. 041, 25 August 1980, reprinted in Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Colombia, Doc. OEA/Ser.L/V/II.53 Doc. 22, 1981, p. 198.
The Report on the Practice of Colombia refers to a draft working paper in which the Colombian Government stated that it was prohibited in particular to kill persons taking no active part in the hostilities.
Report on the Practice of Colombia, 1998, Chapter 4.1, referring to Presidential Council, Proposal of the Government to the Coordinator Guerrillerra Simón Bolívar to humanise war, Draft Internal Working Paper, Part entitled “El Derecho Internacional Humanitario”, § 2.
