August 2001

Few of the world’s internal armed conflicts, of which there are many, are as subject to international law as Colombia’s. Yet despite the application of a wide range of international rules to the parties waging war in that country, the violations of human rights and humanitarian law are increasing and intensifying.

According to the Colombian Commission of Jurists, a prominent human rights NGO, on average 19 persons were killed or disappeared every day between April and September of 2000 as a result of the armed conflict. The daily average for war-related violent deaths during most of 1999 was 12; it had risen to 14 by March 2000. Almost 80% of these crimes are attributable to state security forces or paramilitary groups; guerrilla fighters were responsible for the remaining 20%. Widespread impunity ensures that the vast majority of victims receive no justice at the domestic level. In the international arena, underdeveloped procedures and mechanisms guarantee that, for now, perpetrators of international crimes do not have to answer for the most brutal of their actions outside Colombia either.

Two pressing questions arise. What good is it to have international law apply in the Colombian context if hardly anyone respects it in practice? What role, if any, does international law play in the ongoing armed conflict there? These inquiries guide the discussion developed in this essay.

I. Human Rights Conventions and International Humanitarian Law (IHL)

Certainly there is no lack of applicable international law. Colombia has ratified the full panoply of United Nations human rights treaties, including the International Covenant on Civil and Political Rights [ICCPR]. It has similarly ratified the OAS American Convention on Human Rights, and accepted the jurisdiction of the Inter-American Court of Human Rights for individual cases arising under this treaty. With respect to international humanitarian law [IHL], Colombia has ratified the Geneva Conventions of 1949 and both Additional Protocols; Protocol II, which governs intense conflicts of a non-international character, is particularly relevant to the war in that country. By subscribing to the principal human rights and IHL treaties, Colombia has inserted itself fully into the international legal regimes that seek to ensure that countries abide by and respect the human rights and humanitarian law norms they have adopted, especially in times of war.

Before discussing these regimes, a clarification is in order. Under traditional principles of international law, only states and their officials violate human rights. As premier legal scholar Louis Henkin explains, "the international law of human rights derives principally from contemporary international agreements in which states undertake to recognize, respect, and ensure specific rights for the inhabitants of their own countries." Private actors such as the paramilitary or guerrilla groups in Colombia do not violate human rights norms because they are not subject to the obligations established in human rights treaties for governments and their agents. International humanitarian law, on the other hand, explicitly contemplates international responsibility for private individuals and non-state actors, as well as government officials, who act in contravention of IHL provisions during armed conflict.

Monitoring compliance

Both the United Nations and the Organization of American States possess specialized mechanisms and procedures for promoting member States’ compliance with the respective human rights treaties they have ratified. The UN’s Treaty Body system is made up of six expert committees, each set up to oversee the implementation of one of the UN’s main human rights treaties. The Human Rights Committee monitors compliance with the ICCPR, the Committee on the Rights of the Child does the same with respect to the Convention on the Rights of the Child, and so on. All six committees periodically review Colombia’s progress in complying with its international obligations under the corresponding treaties. According to numerous UN reports, Colombia has consistently failed to comply with most of the international obligations promoted by this system.

The main political organs within the United Nations that promote compliance with human rights and humanitarian law norms are the Commission on Human Rights and the High Commissioner for Human Rights, who maintains a permanent office in Bogotá. Both are very active in monitoring the war in Colombia. In her latest report, issued February 18, 2001, the High Commissioner stressed that the situation had deteriorated significantly during 2000, and that the ongoing violations of human rights "[could] be qualified as grave, massive and systematic." On April 24, 2001, the UN Commission on Human Rights issued a detailed statement on Colombia echoing the High Commissioner’s concern. The Commission condemned the grave violations of international law by all the parties to the conflict, and placed special emphasis on the crimes committed by paramilitary groups acting in concert with state forces.

The OAS system has only two levels of review: the Inter-American Commission and the Inter-American Court of Human Rights, which operate within the framework established for the region by the American Convention on Human Rights. As is the case with the UN, Colombia has in recent decades been the object of intense scrutiny by these organs of the OAS system. In 1999, the Inter-American Commission of Human Rights published its Third Report on the Situation of Human Rights in Colombia. The Commission’s report examined a wide range of human rights and humanitarian law issues in light of the American Convention and related international humanitarian law norms, namely, those expressed in Article 3 common to the four Geneva Conventions and Additional Protocol II. The Inter-American Commission concluded that Colombia was not meeting its legal obligations under the American Convention.

II. Universal Jurisdiction and International Criminal Law

In addition to the classic international law obligations established by the aforementioned treaties, the war in Colombia (or anywhere else) is subject to a growing body of norms collectively referred to as international criminal law. The basic difference between the UN and OAS treaties discussed above and international criminal law is that the former are binding only on states while the latter focuses primarily on individuals. This means that the assignment of international responsibility for illegal acts is fundamentally different.

Violations by government agents of a human rights treaty give rise to international responsibility on the part of the state that ratified it, not the agents who carried out the criminal act, who must be prosecuted under local laws. A good example of this dynamic is the case decided by the Inter-American Court of Human Rights in 1995 which found Colombia responsible for the forced disappearance of two persons by army units in violation of the American Convention. The Court ordered the Colombian State to compensate the victims’ families and to take steps to ensure that the perpetrators were brought to justice. The army officers, soldiers and civilians involved in the disappearance were not themselves directly the subject of the Court’s decision, which centered instead on establishing the state’s international responsibility under the treaty. They were, however, investigated by the Colombian judicial authorities for this crime.

International criminal law, on the other hand, is all about the individuals’ responsibility for committing egregious acts that are universally condemned by the community of nations, such as genocide, crimes against humanity, and war crimes. Perpetrators of such crimes can be detained, prosecuted and punished in their personal capacity anywhere in the world. Witness the landmark case of Augusto Pinochet, the former dictator of Chile, who was arrested in London in October of 1998 on charges of committing human rights crimes subject to universal jurisdiction under international law. Or consider the recent conviction in Belgium of four Rwandans, two of them Roman Catholic nuns, for their participation in the mass killings that took place in their country in 1994 -- the first time ever that a national court exercised universal jurisdiction to convict persons for international crimes committed in another country.

Universal jurisdiction, to summarize, refers to the principle that every state has a fundamental interest in bringing to justice the perpetrators of international crimes -- genocide, crimes against humanity, or war crimes -- no matter where the acts were committed and regardless of the nationality of the perpetrators or their victims. In the Colombian context, as we shall soon see, the warring parties have committed, and continue to carry out, acts amounting to international crimes.

War crimes and Crimes Against Humanity

The current trend in international law is to treat certain prohibited acts as war crimes, regardless of whether they were committed during a civil war like Colombia’s or in the course of an international armed conflict between states. In this context, crimes of war include those acts that violate universally recognized principles of the laws and customs of war applicable to internal armed conflict. Article 3 common to the four Geneva Conventions of 1949, which reflects a universally accepted standard for internal armed conflicts, outlaws, among other things, "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, taking of hostages, [and] outrages upon personal dignity." Moreover, customary norms of international law that supplement common article 3 proscribe intentional attacks against the civilian population as such, or against individual civilians not taking part in the hostilities. Under the modern definition, then, any act committed by one of the warring parties in violation of these basic humanitarian principles is a war crime.

War crimes are different from crimes against humanity because, among other things, they do not require that attacks on the civilian population be widespread or systematic to rise to the level of an international crime. Certain international standards like the prohibition on crimes against humanity or genocide establish very high thresholds that must be met as a legal matter before criminal responsibility attaches; these requirements, however, do not apply to war crimes per se. In the Colombian context, the murder or torture by members of the armed forces of an individual civilian could in itself constitute a war crime. Such an act, however, would not be considered a crime against humanity unless it were part of a much wider and systematic campaign directed against sectors of civil society.

Unfortunately, this intricate mesh of international law rules and mechanisms has been utterly insufficient to curb the escalating humanitarian crisis growing out of the armed conflict in Colombia. In its Annual Report, submitted to the OAS General Assembly on April 16, 2001, the Inter-American Commission found that "there was chronic disregard for the obligation to ensure respect for the civilian population’s fundamental human rights, such as the right to life, the right to humane treatment, the right to freedom of movement and residence, and the right to effective judicial protection." The UN High Commissioner for Human Rights was much less diplomatic. In her latest report, she not only decried the "grave, massive and systematic" violations of human rights, she condemned the widespread breaches of international humanitarian law, claiming that IHL violations "were again recurrent, massive and systematic, many of them forming part of a general assault on the civilian population."

III. International Law and the War in Colombia

What the High Commissioner meant was that the parties to the conflict in Colombia are committing war crimes and crimes against humanity. The great majority of their victims are not other combatants but unarmed civilians singled out for retribution, sometimes with extreme cruelty. In the course of this savage war, civilians are persistently murdered and massacred, tortured, raped, disappeared, taken hostage, terrorized, and driven from their homes by the thousands. It does not matter whether the perpetrators are army officials, paramilitary chieftains or rebel commanders. So long as their actions or those of their subordinates are part of a widespread or systematic attack against the civilian population, or are in violation of universal principles of the laws and customs of war, they may be held criminally responsible under international law.

What follows is an accounting of those actions attributable to the warring parties in Colombia that qualify as international crimes. I will conclude with a short reflection on the role of international law in light of the country’s dire human rights and humanitarian law crisis.

Paramilitary groups and the Colombian Armed Forces

The paramilitary groups, aided and abetted by sectors of the Colombian armed forces, are clearly the worst perpetrators of international crimes. Together, they account for approximately 80% of the murders and forced disappearances of civilian non-combatants occurring in the course of the conflict, which totaled over 4,000 victims in 2000. Many of these killings take place during the numerous massacres systematically carried out by paramilitaries. (Massacres are commonly defined as the collective execution of four or more persons.)

Paramilitary groups have long utilized massacres as a widespread strategy to combat the insurgency by targeting civilians presumed to comprise the rebels’ social base. During a one-year period between October 1996 and September 1997, for instance, they were responsible for 86 massacres and a total of over 500 victims, according to the Colombian Commission of Jurists. In recent years, these groups have stepped up significantly the rate at which they conduct their systematic attacks against the civilian population. In one rampage, carried out over the first 18 days of 2001, paramilitary groups acting in concert committed 26 massacres in 11 departments of the country, butchering a total of 170 people.

In these and other similar actions taking place all over the country, victims are killed after being tortured, mutilated, and subjected to other cruel or inhumane treatment by their paramilitary captors. Human Rights Watch [HRW] reports how, on February 18, 2001, 300 armed men form the paramilitary Peasant Self-Defense Force of Córdoba and Uraba [ACCU] entered the town of El Salado, Bolívar Department, and massacred no fewer than 36 inhabitants, including women and children. Thirty more were reported missing or disappeared. The victims were tortured, raped, suffocated, garroted, stabbed and decapitated over the course of two full days. This was possible because all the while, the Colombian navy’s First Brigade maintained roadblocks around El Salado, preventing anyone, including the International Committee of the Red Cross, from entering the town.

In addition to the massacres and the regular practice of torture, paramilitary agents are responsible for a widespread campaign of selective killings or assassinations directed at civilians, especially political candidates, labor leaders and trade unionists, human rights defenders, indigenous leaders, academics and students. Paramilitary groups were likewise responsible for the vast majority – almost 80% – of the 664 forced disappearances of civilians reported in 2000. Disappearances, massacres, the selective assassination of civilians, widespread torture; all of these are crimes against humanity giving rise to individual criminal responsibility. Anyone committing or complicit in these international crimes – from Carlos Castaño, commander of the United Self-Defense Groups of Colombia [AUC], on down – may one day be held criminally responsible under international law for their actions.

The Colombian armed forces are themselves a source of serious human rights abuses amounting to international crimes. They frequently participate in or are complicit with crimes against humanity and war crimes involving their paramilitary allies. In fact, the paramilitary groups owe much of their brutal success to the Colombian authorities: there is substantial and credible evidence of direct army and police participation in several massacres attributed to the paramilitaries. In the case of El Salado described above, the Office of the UN High Commissioner in Colombia received reports that, in addition to closing off the town with roadblocks, members of the Colombian military were directly involved in the carnage. Countless other cases reveal active participation and/or complicity by state agents, without which the paramilitaries could not move or act as freely as they do.

Whether acting in concert with paramilitary groups or acquiescing to their atrocities, government officials, both military and civilian, are committing international crimes for which they may one day be held responsible. Foreign and national observers of the Colombian conflict would do well to remember this fact. Nor should they forget that members of the national security forces continue to carry out extra-judicial killings, acts of torture and other attacks on the civilian population directly, in violation of the laws of war. Proportionately, however, these transgressions of international law run a distant third to those committed by the paramilitary and guerrilla groups.

Guerilla Groups

The two main insurgent forces, the Revolutionary Armed Forces of Colombia [FARC] and the National Liberation Army [ELN], commit war crimes, and perhaps even crimes against humanity, by targeting civilians in a number of ways. Reliable non-governmental sources affirm that 20% of the politically motivated killings taking place today in Colombia are attributable to the two main guerilla groups. The FARC, especially, massacre civilians from time to time, and both groups regularly engage in the selective killing of dissidents and opponents. In December of last year, armed men believed to be from the FARC killed Diego Turbay, a congressman who was the chairman of the House of Representative’s Committee on Peace. Guerrilla fighters from the FARC also murdered three American indigenous activists in 1999. In recent years, hundreds of other civilians, including social, political and indigenous leaders, have been executed by the FARC and the ELN for collaborating with the enemy or refusing to accede to their demands.

In order to finance their military operations, both the FARC and the ELN engage in the widespread and systematic practice of kidnapping civilians for ransom, which, under the rules of international humanitarian law, is considered hostage taking. Fundación País Libre, an NGO that studies this phenomenon, calculates that over 1,500 people were taken hostage by the guerillas between January and September of last year, a figure that represents 61% of the total number of abductions that occurred in Colombia in 2000. Of those abducted, 165 did not survive the ordeal.

This practice is taken to extremes when the guerrillas engage in mass hostage taking; scores of men, women, and children are kidnapped at the same time and held for ransom. Last year, the ELN rounded up and kidnapped 60 victims at one highway roadblock, three of whom subsequently died in captivity. In April 2001, the ELN, which in the past has hijacked an airplane and interrupted church services in order to capture victims, abducted 100 employees of Occidental Petroleum, an American oil company. Most of the victims were subsequently released.

One FARC commander recently interviewed by Human Rights Watch dismissed international humanitarian law as "a bourgeois concept." Bourgeois or not, the intentional killing of civilians and hostage taking are war crimes under the applicable norms of international law. These actions may also constitute crimes against humanity if perpetrated in a widespread or systematic manner, as appears to be the case with kidnapping civilians for ransom. The repeated massacres and regular political assassinations carried out by both guerrilla groups may also rise to the level of crimes against humanity, though it is less clear that the guerrillas’ practice in this respect meets the elevated threshold required for such crimes.

IV. Impunity, Accountability and the Quest for Peace

As terrible as it may seem, most of the perpetrators of international crimes in Colombia may never be brought to justice. Impunity in that country has long hovered at nearly 100% for violent crimes, especially those committed in the course of the war. The weakness of the Colombian judicial system makes the prosecution and punishment of paramilitary or guerrilla offenders relatively rare. Military commanders implicated in massacres and other international crimes are repeatedly shielded from sanction by the military justice system, which either absolves them of all wrongdoing or issues an administrative slap on the wrist. This wall of impunity blocks the judicial system from reaching the worst offenders. Although Carlos Castaño, leader of the AUC, has multiple arrest warrants pending against him (at last count it was 22), he has met regularly with national and foreign officials, granted numerous interviews to the press, and moved about the country seemingly at will.

Although there is as yet no international mechanism that can ensure accountability, the recent establishment of specialized tribunals designed to process international crimes is an encouraging sign of positive change. The most significant of these is the International Criminal Court ["ICC"], created by the Rome Statute in 1998 (the ICC is not yet formally in existence because the Rome Statute, itself a treaty, has not yet been ratified by a sufficient number of countries). Colombia has signed the Rome Treaty, which is currently under study for ratification by the Colombian Congress. It is not farfetched to think that, at some point in the not too distant future, there may be an international court charged with bringing to justice the perpetrators of war crimes and crimes against humanity in Colombia.

In the meantime, one has to wonder what good is international law if it cannot stop or even slow the rampant violations of human rights and humanitarian law in Colombia? What purpose does it serve if no international tribunal yet exists to combat impunity and ensure some degree of accountability in that country?

One answer is that human rights and humanitarian law – the conscience of international law – is today an essential component of the arduous search for peace in Colombia. Since being elected in 1998, President Andrés Pastrana has made important strides towards achieving a negotiated settlement to the armed conflict. He reached preliminary agreements with the FARC and the ELN that acknowledge the urgent need to "humanize" the conflict by signing accords that promote greater respect for human rights and humanitarian law norms. Finally, on June 2, 2001, the first such accord was signed: the FARC agreed to release approximately 100 police and army captives in exchange for the government’s liberation of 15 guerrilla leaders held in Colombian jails. Moreover, after its leaders were freed, the FARC handed over another 260 servicemen as a humanitarian gesture, bringing the total of freed government prisoners to over 360.

The parties to the conflict could, and hopefully will, build on this landmark agreement by signing similar humanitarian accords and, eventually, a cease-fire. Government officials claim that new agreements with the FARC and the ELN are just around the corner. Future accords would seek primarily to protect the civilian population from attack, to reaffirm the state’s obligation to respect human rights, and to curb abuses of humanitarian law by the guerrillas, such as kidnapping and the recruitment of children. The parties (and most observers) agree that subscribing additional agreements, and including a component of international verification to check for compliance, are necessary steps on the path to peace.

As new agreements are signed, the need for international verification of compliance will further entrench the role of international law as a guarantor of the peace process in Colombia. While it is still uncertain what form this verification would take, it will depend on the participation of legal experts from Colombia and abroad responsible for overseeing compliance with the human rights and humanitarian rules enshrined in those agreements. In El Salvador and Guatemala, such international verification served as the foundation upon which subsequent peace agreements ending the conflict in both countries were constructed.

There is no denying that international law is an integral part of the search for a negotiated solution to the armed conflict in Colombia. And when peace finally does come to our beleaguered country, the subject of dealing with a legacy of past abuses in the context of national reconciliation will loom large. The calls for truth about the past and justice for the war’s countless victims will clash with the political realities of making the peace accords stick. Military and political leaders on all sides will need to confront the prospect of accountability, and to address past wrongs, before a lasting peace can take hold. It is essential that mechanisms and procedures capable of processing the international crimes committed by the warring parties be created if Colombia is to eventually transition from being a country torn by violent conflict and unspeakable crimes to one advancing down the path to reconciliation, peace and prosperity.

Whether the machinery of accountability takes the form of an international criminal tribunal for Colombia, like the one established for Rwanda, or a truth and reconciliation commission like South Africa’s, is a matter for future negotiations. What is certain is that international law will continue to play a lead role in Colombia’s quest for a just and durable peace.