Practice Relating to Rule 96. Hostage-Taking
Colombia’s Basic Military Manual (1995) prohibits the taking of the civilian population as hostages.
Colombia’s Operational Law Manual (2009) states:
[Article 3 common to the four 1949 Geneva Conventions] establishes the conduct that is not permitted in relation to protected persons (although it should be noted that most of this conduct is also prohibited in relation to persons participating in hostilities):
(ii) taking of hostages[.]
[footnote in original omitted]
The manual also states: “Both international human rights law and IHL equally vehemently prohibit torture, for example, or hostage-taking, or outrages upon personal dignity.”
Colombia’s Penal Code (2000) imposes a criminal sanction on anyone who, during an armed conflict, orders or carries out the taking of hostages.
Colombia’s Penal Code (2000), as amended in 2002, states:
Article 169. Extortive kidnapping. The person who seizes, abducts, holds or conceals [another] person with the purpose of demanding, [as a condition] for this person’s freedom, an advantage or any profit, or for something to be done or to be omitted, or with political or advertising purposes, shall be punished with imprisonment …
Article 170. Aggravating circumstances. The penalty for the crime of extortive kidnapping [shall be aggravated] … if one of the following circumstances takes place:
16. [When committed against an] internationally protected person … under international humanitarian law.
The Report on the Practice of Colombia refers to a decision by the Council of State in which the Council notes that the category of direct attacks on civilians also includes hostage-taking and that “this is especially true when the military operations are disorderly and improvised and an unwillingness to protect the hostages is combined with a total disregard for human rights and the basic principles of the law of nations”.
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 and practically reproduced specific constitutional provisions.
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  Geneva Conventions … 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): … (b) Taking of hostages.
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 taking hostages.
[footnote in original omitted]
The Court also held:
[T]he prohibition against the taking of hostages has been classified as an imperative norm of international law or ius cogens
. In this sense, it must be taken into account that the prohibition against taking hostages under international humanitarian law in practice amounts to a number of non-derogable guarantees provided by international human rights law, including the right to life, liberty and security of person, the prohibition against torture and cruel, inhuman and degrading treatment, as well as the protection against arbitrary detention. All this … is a clear indication of its imperative, peremptory nature, or ius cogens
The Court further stated:
There is a customary definition of the elements constituting the war crime [of taking hostages] that also form part of the Colombian constitutional framework. The taking of hostages as a war crime, in the context of non-international armed conflicts, is considered to include the following elements: (a) the detention or retention of one or more persons (the hostages), (b) a threat involving the murder, bodily harm or prolonged detention of the hostage, (c) with the intention to force a third party – which can be the State, an international organization, a natural or legal person or group of persons – to undertake or to abstain from undertaking certain acts, (d) as an explicit or implicit condition to free the hostage or to secure the hostage’s safety.
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
319. Colombia has for years been a victim of abductions, mainly by the action of organized illegal armed groups. The State as a whole and civil society have worked from different perspectives to put an end to these practices that deprive hundreds of Colombians of their freedom.
320. Law No. 733 of 2002 establishes measures to eliminate the crimes of abduction, terrorism and extortion and promulgates other provisions. The rules contained in the Law aim at more severe treatment of the crimes of abduction per se, extortionate abduction, extortion and terrorism.
333. Also noteworthy, from a political standpoint, is the openness of the national Government to the possibility of a humanitarian agreement to resolve the problem of hostages being held by organized illegal armed groups, particularly those held by the FARC [Revolutionary Armed Forces of Colombia] guerrillas. Through the endeavours of the security forces in performance of their duty to secure and protect the rights of the citizenry, hostage rescues have been achieved[.]
Colombia also stated:
As part of the Democratic Security Policy, several strategies have been developed for the dismantling of organized unlawful armed groups and for the pursuit of peace, particularly against the guerrillas of the FARC and ELN [National Liberation Army] and United Self Defence Forces of Colombia (AUC) through direct combat, individual and collective demobilization and reintegration.