I. SUMMARY AND RECOMMENDATIONS
Violations of international humanitarian law the laws of war are not abstract concepts in Colombia, but the grim material of everyday life. War bursts into the daily activities of a farm, a village, a public bus, or a school with the speed of armed fighters arriving down a path or in four-wheel drive vehicles. Sometimes, armed men carefully choose their victims from lists. Other times, they simply kill those nearby, to spread fear. Indeed, a willingness to commit atrocities is among the most striking features of Colombias war.
The inauguration of a new president and the growth of a broad-based civic movement that has called for a just and fair peace have given Colombians new hope for an end to political violence. Indeed, civilians lead the effort to convince the parties to respect the laws of war and negotiate an end to the conflict.
Some communities thrust into the conflict have attempted to negotiate local accords with combatants as a way of protecting their civilian populations. Nevertheless, none of the parties to the conflict have fully respected these decisions. Indeed, negotiations have been doomed in large part by the failure to address fundamental issues, including impunity for violations of human rights and international humanitarian law.
Just as Colombias war has no set battlefields, so does it lack safe haven. In traditional wars, civilians can flee the front lines in the hopes of saving their lives and the lives of their loved ones. But Colombias war has no quarter, which in the strict definition means mercy or shelter.
That must change. Human Rights Watch holds all parties to the conflict in Colombia responsible for upholding the laws of war, which seek to protect human life in the midst of armed conflict. In doing so, we imply no political recognition, status, or approval for any armed group. Our goal is to promote these international standards as a way of saving lives and minimizing human suffering even in the midst of war.
The laws of war applicable to the armed conflict in Colombia are: Common Article 3 of the Geneva Conventions of 1949, which addresses armed confrontations between relatively organized armed forces or armed groups occurring exclusively within the territory of a particular state; Protocol II Additional to the Geneva Conventions, which applies to non-international armed conflict where insurgent forces are highly organized and is meant to protect civilians and captured combatants; and customary international law, which results from a general and consistent practice of states followed by a sense of legal obligation. Where necessary, we refer to other legal instruments, like Protocol I, and relevant commentaries for authoritative guidance on terms or situations left unexplained by these central texts. Although Protocol I was drawn up to apply tointernational armed conflicts, many of its detailed norms have acquired the status of customary international law. We include Common Article 3 and Protocol II in Appendix I.
Few seriously question that Colombias war satisfies the conditions for the application of the laws of war. In interviews with Human Rights Watch, all of the parties to the conflict agreed in principle that the laws of war should be observed in Colombia.
Yet the distance between words and deeds is vast. All parties actively manipulate the concept of international humanitarian law for perceived political and tactical gain. There is also deep disagreement about the terms used in the laws of war to identify non-combatants and military targets. While some disagreement may be the subject of honest debate, much of the opposition to the full compliance with laws of war in Colombia is a cynical justification for continued, deliberate, and atrocious violations of the minimum standards necessary to protect human life.
This report is divided by party to the conflict, beginning with the Colombian army, National Police, and Special Vigilance and Private Security Services (Servicios de Vigilancia y Seguridad Privada, or CONVIVIR); paramilitaries allied as the United Self-Defense Group of Colombia (Autodefensas Unidas de Colombia, AUC); and Colombias three largest guerrilla groups, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC), the National Liberation Army (Unión Camilista-Ejército de Liberación Nacional, UC-ELN), and the Popular Liberation Army (Ejército Popular de Liberación, EPL).
The Colombian army teaches its officers the basics of international humanitarian law and makes instructional material available to officers, professional soldiers, and recruits. Some commanders emphasize the importance of human rights and international humanitarian law to field officers and their men. Nevertheless, after examining hundreds of cases and interviewing many officers, government investigators, and civilians who have witnessed violations, Human Rights Watch concludes that the army continues to engage in serious violations of the laws of war, with little apparent will to investigate or punish those responsible. At the root of these violations is the Colombian armys consistent and profound failure or refusal to properly distinguish civilians from combatants.
Types of army violations vary according to region and unit. In eastern Colombia, where paramilitaries are weak or have yet to fully penetrate, the army is directly implicated in the killing of non-combatants and fighters who have surrendered or been taken prisoner (defined by the Geneva Conventions as hors de combat), torture, and threats. In the rest of the country, where paramilitaries have a pronounced presence, the army fails to move against them and tolerates theiractivity, including egregious violations of international humanitarian law; provides some paramilitary groups with intelligence used to carry out operations; and in other cases actively promotes and coordinates with paramilitary
units, including joint maneuvers in which atrocities are the frequent result.
The National Police has also incorporated the language of human rights and international humanitarian law in its official discourse and conducts regular training on international standards for its agents. In general, police commanders are more responsive than their military counterparts to reports of violations by their members and act more readily to investigate abuses.
Nevertheless, police agents continue to be implicated in violations. Most frequent are cases where officers capture suspects and execute them. In areas where paramilitaries are present, some police officers have been directly implicated in joint army-paramilitary actions or have supplied information to paramilitaries for their death lists. Police have also stood by while paramilitaries selected and killed their victims.
On many occasions, police have publicly described whole communities as guerrillas or sympathetic to them and have withdrawn police protection, a violation of their responsibility under Colombian law to protect civilians from harm. Instead of reinforcing the police after guerrilla attacks, police commanders have withdrawn officers, thus encouraging or allowing paramilitaries to move in unimpeded and kill civilians.
We conclude the section on state violations with CONVIVIRs. CONVIVIRs are licensed by the government and led by civilians who are supposed to engage in self-defense and as a rapid-response network against guerrilla attacks. Several CONVIVIRs have taken a direct role in hostilities, attacking guerrillas and closely coordinating with the army and police in operations.
Human Rights Watch believes CONVIVIRs dangerously blur the distinction between civilians and combatants, putting all civilians at risk of attack. In addition, the government has failed to effectively supervise and control CONVIVIRs, and some have murdered civilians and threatened them with death. In some cases described in this report, CONVIVIRs have used government-supplied weapons to commit these violations. Like other perpetrators of political violence in Colombia, most CONVIVIR members implicated in abuses have largely gone uninvestigated and unpunished.
At the time of this writing, there are at least seven paramilitary groups allied under the name AUC: the Peasant Self-Defense Group of Córdoba and Urabá (Autodefensas Campesinas de Córdoba and Urabá, ACCU), the largest and most public group; the Eastern Plains Self-Defense Group (Autodefensas de los Llanos Orientales, also known as Los Carranceros, after their leader, Víctor Carranza); theCesar Self-Defense Group (Autodefensas del Cesar); the Middle Magdalena Self-Defense Group (Autodefensas del Magdalena Medio), the group with the longest history; the Santander and Southern Cesar Self-Defense Group (Autodefensas de Santander y el sur del Cesar); the Casanare Self-Defense Group (Autodefensas del Casanare); and the Cundinamarca Self-Defense Group (Autodefensas de Cundinamarca).
Although AUC units operate frequently in direct coordination with the Colombian security forces, the AUC also acts independently and has a separate command structure, source of weapons and supplies, and operations planning. When paramilitaries commit violations in coordination with state agents, like the army, we hold both the state agent and paramilitaries responsible for the violation.
The AUC leader, Carlos Castaño, has repeatedly stated a willingness to pledge his forces to respect the laws of war, which, if put into practice, would be an advance in protecting human life. However, Castaño has also argued that the nature of Colombias war with many combatants out of uniform and without any identification makes strict standards difficult if not impossible to apply. Instead, he has advocated a creole version of international humanitarian law that contradicts a central principle of the laws of war: the protection of fighters who have surrendered, been captured, or otherwise been rendered defenseless.
After a detailed review of cases and on-site interviews, including one with Carlos Castaño, Human Rights Watch has concluded that far from attempting to respect the laws of war, the AUC depends on the explicit, deliberate, and systematic violation of these standards in order to wage war. Government investigators, church officials, humanitarian aid groups, and victims of AUC attacks also agree that the AUC pays only lip service to the protections contained in Common Article 3 and Protocol II. The AUC repeatedly and unequivocally flouts international standards by committing massacres, killing civilians and combatants hors de combat, and engaging in torture, the mutilation of corpses, death threats, forced displacement, hostage-taking, arbitrary detention, and looting, among other violations.
During our investigation, Human Rights Watch found no evidence that the FARC, Colombias largest guerrilla group, has made an attempt to conform its methods to international standards. When the FARC perceives a political advantage, it showcases observance of international humanitarian law. However, in dozens of other cases where no political advantage is apparent, the FARC flagrantly violates the laws of war. Among the violations we document here are massacres and targeted killings of civilians, the killing of combatants hors de combat, torture, hostage-taking, looting, and attacks on non-military targets likeambulances. Repeatedly, the FARC denies involvement in violations even when evidence of their responsibility is overwhelming.
For their part, the UC-ELN was among the first insurgent groups in Colombia to begin an internal discussion of international humanitarian law. Even as Colombia refused to adopt Protocol II, the UC-ELN called for negotiations aimed at humanizing political conflict. However, this openness to negotiation as yet is not reflected in behavior in the field. Indeed, the UC-ELN strongly disputes the terms of international humanitarian law, at times to justify tactics that are clear violations, and openly flouts these standards in the field. In this report, we document the targeted killing of civilians, the killing of combatants hors de combat, torture, the executions of patients in hospitals, hostage-taking, and indiscriminate attacks, including attacks on civilian homes, hospitals, and public buses, and the use of land mines. In addition, the UC-ELN violates the ban on attacking non-military targets by systematically bombing Colombias oil pipelines in order to extort money from oil companies and press a political point.
The EPL told Human Rights Watch that it respects international humanitarian law, with certain exceptions. For instance, the EPL allows its forces to execute people for participation in paramilitary groups. Such exceptions confirm that in fact, the EPL engages in political killings dressed up as some form of justice. Human Rights Watch also documents EPL violations like the killing of family members of guerrilla deserters and combatants hors de combat, hostage-taking, and attacks on non-military targets, like public buses.
We close the report with two types of violations committed by all sides in the conflict: the recruitment of children under fifteen years of age and forced displacement, both prohibited by the laws of war.
Article 4 (3) (c) of Protocol II prohibits the recruitment of children under the age of fifteen or allowing them to take part in hostilities. In addition to domestic legislation protecting the rights of children, Colombia has ratified the Convention on the Rights of the Child, which fixes a minimum recruitment age of fifteen.
Human Rights Watch fully supports the adoption of an optional protocol to the United Nations Convention on the Rights of the Child to raise the minimum age for recruitment and participation in hostilities from fifteen to eighteen. Persons under the age of eighteen have not reached physical or psychological maturity and are ill-prepared to face the harsh conditions of warfare. Many who have volunteered or who have been forced to serve emerge at the end of hostilities physically and psychologically scarred by their experience and unprepared to live in and contribute to a peaceful society. Even more than their adult counterparts, these children require extensive social and psychological rehabilitation after involvement in hostilities.
Moreover, the indirect participation of children in hostilities should also be outlawed. Children who serve in support functions for armed groups are often subsequently drawn into direct participation. This is particularly true in the case of conflicts like Colombias.
Forced displacement of the civilian population is expressly prohibited by Article 17 of Protocol II. Unless civilians must move for their own security or a clear military imperative, the text states, combatants cannot order or force them to move. Nevertheless, in Colombia, all forces provoke displacements without any regard for international humanitarian law. Currently, over one million Colombians have reportedly been displaced by violence. Chief among the causes of forced displacement are violations of human rights and the laws of war. Forced displacement often results from indiscriminate attacks, the terror caused by massacres, selective killings, torture, and threats.
To all of the parties
· All parties should immediately instruct their combatants to strictly adhere to Common Article 3 of the Geneva Conventions and Protocol II. These minimum standards apply automatically to all groups engaged in Colombias armed conflict; no negotiation is necessary to apply them. The following recommendations based on these standards reflect the type of violations all of the parties to the conflict are engaged in. Other recommendations pertinent to some, but not all, of the groups are included in separate recommendations made to each party. Specifically we recommend:
- an end to the killing of non-combatants, regardless of the imposition of purported death sentences. Protected are not only civilians who take no direct role in hostilities, but also civilians whose political opinions may be partisan;
- an end to the killing of combatants hors de combat;
- an end to torture;
- an end to the mutilation of cadavers;
- an end to death threats against civilians, including the threat to consider civilians a military target;
- an end to attacks on religious and health personnel carrying out duties protected by the laws of war;
- respect for structures or vehicles marked with the red cross;
· All forces should cease using, importing, producing, and stockpiling land mines, by definition indiscriminate weapons outlawed by the laws of war.
· Human Rights Watch supports the adoption of an optional protocol to the United Nations Convention on the Rights of the Child to raise the minimum age for recruitment and participation in hostilities from fifteen to eighteen, and calls on the parties to the conflict to immediately take all appropriate measures to prevent recruitment of persons under the age of eighteen.
· The prohibition on children's participation in hostilities should not be narrowly focused on direct participation, but should include childrens participation in support services, since children who serve in this capacity are often subsequently drawn into direct participation.
· All sides should eliminate practices that provoke forced displacement should instruct their combatants to avoid such practices.
· All sides should adopt clear rules for mounting roadblocks to avoid civilian casualties. Combatants should be clearly instructed that on-the-spot executions at roadblocks are prohibited in all cases.
· Attacks against democratically-elected officials, election candidates, and others for voicing a political opinion must be stopped. We call on all parties to the conflict to cease targeting civilians simply because they have voiced a controversial or partisan opinion.
· The parties to the conflict should negotiate the following points as priorities:
- a mechanism to improve the location and identification of persons reported disappeared, wounded, or killed in action, and assist in efforts to evacuate protected individuals from combat areas;
- a mechanism to establish demilitarized zones in combat areas for the protection of civilians and the treatment of the wounded;
- a mechanism to properly identify and mark health and religious buildings, historical and cultural monuments, and areas of dangerous forces such as dams or nuclear electrical generating stations since, according to Article 15 of Protocol II, these areas are protected from attack. Combatants should be instructed to refrain from attacking these installations. The education of the population about the meaning of these international symbols should go on at the same time.
· All parties should formally invite the International Fact-Finding Commission established by the Geneva Conventions to come to Colombia to begin investigating reports of laws of war violations.
· All parties should adopt clear rules of engagement that reflect the laws of war. Commanders should be required to assess planned attacks in light of the laws of war and demonstrate to their superiors that there will be no excessive damage to civilians. If evidence emerges showing that a violation has occurred, we encourage the parties to immediately share evidence with the International Fact-finding Commission.
To the Colombian government
· The Colombian government must end the tolerance on the part of the security forces for paramilitaries and end any sharing of intelligence or logistical support for them. Officers who promote or coordinate with paramilitaries and go on joint maneuvers with them should be prosecuted and punished by civilian courts.
· Human rights defenders are among those most at risk in Colombia. We call on the Colombian government to take immediate steps to protect the lives of human rights defenders, conducting thorough and credibleinvestigations into links between the armys Twentieth Brigade and the killings of Eduardo Umaña and Jesús María Valle. Also, the government should open security force intelligence files to outside and independent review, to ensure that reports that criminalize legitimate human rights work are removed.
· Armed forces officers against whom there are credible accusations of human rights and laws of war violations should be suspended immediately pending a serious and credible investigation. Should merit be found to the accusations, these officers should be tried in civilian courts, not military tribunals, in accordance with a 1997 Constitutional Court ruling.
· Important cases involving officers accused of serious human rights and laws of war violations have never been properly investigated or prosecuted in Colombia in part because the statute of limitations governing internal investigations by the executive branchs Internal Affairs Division (Procuraduría) has precluded action. The government should repeal all statutes of limitations on these serious crimes for both administrative and criminal proceedings.
· The Colombian government should actively promote the enactment of legislation that fully addresses continuing impunity in Colombia, including a military penal code reform, legislation making the act of forcibly disappearing someone a crime, legislation severely penalizing torture, and legislation that formally recognizes the office of the Human Rights Unit within the Attorney Generals Office and allocates to that office sufficient funding to aggressively identify and investigate cases involving human rights and laws of war violations.
· The Colombian government should propose, strongly support, fully implement, and vigorously uphold legislation that makes violations of international humanitarian law punishable in Colombia.
· The administration of President Andrés Pastrana should immediately repeal legislation that violates Colombias obligations under the laws of war, including the legislation establishing regional courts, which fail to ensure the due process guarantees required by Article 6 of Protocol II and human rights treaties ratified by Colombia such as the American Convention on Human Rights and the International Covenant on Civil andPolitical Rights. No new cases should be sent to regional courts. The government should appoint an independent commission chaired by the attorney general to review existing convictions. If due process violations are found after extensive review, mistrials should be declared and the cases should be retried in proceedings where due process is guaranteed.
· The government-sponsored CONVIVIRs dangerously blur the line between civilian and combatant and have committed serious and repeated human rights and laws of war violations. So far, reforms have not addressed the fundamental problems of control and accountability. Therefore, all such groups should be disbanded and their government-supplied weapons seized.
· We call on President Pastrana to make clear his unequivocal support for civil authority in Colombia. In particular, elected governors, mayors, town council members, and civic leaders should not be made the targets of military surveillance unless an independent judicial authority has confirmed that there is convincing evidence of a crime having been committed.
· Human Rights Watch calls on Colombia to ratify the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction (hereinafter Mine Ban Treaty) as soon as possible and to abide by the treaty until ratification. In the interim, Colombia should begin destruction of its stockpiled antipersonnel mines and should begin the process of identifying, marking, monitoring, and clearing its mined areas.
· Colombia should reform the laws governing military recruitment and bring them into accord with the emerging international consensus on banning the recruitment of children under eighteen. In addition, the government should repeal Law 81, which allows guerrillas, including children, to turn themselves in and serve their sentences in military barracks instead of in prisons. Often, this results in forced recruitment of the children into military service; these individuals, also called guides, have been repeatedly coerced into or forced to take part in military and joint military-paramilitary operations.
· The Colombian security forces must be professionalized. Success of this endeavor should be measured by a significant decrease in international humanitarian law violations, such as killing of civilians and combatants hors de combat, torture of detainees, and death threats. Moreover, any measure of success must include severing all military ties with paramilitaries and aggressive efforts to apprehend those wanted for these criminal activities. In addition to the reform of the military penal code, we believe the following measures are crucial for the professionalization of the security forces:
- the government should commission an independent study to determine to what degree troops now in the field understand their responsibilities under Common Article 3 and Protocol II. This study should include visits to military installations, on-site evaluation of operations, and interviews with officers and troops in conditions that favor a candid conversation. Informants should be asked to respond to hypothetical questions typical of the Colombian conflict to assess their ability to understand the complexities of the application of the laws of war. If it is found, as we suspect, that officers and soldiers are not aware of their responsibilities, the government should immediately implement training in coordination with the International Committee of the Red Cross (ICRC) to fully acquaint soldiers with their responsibilities. A priority should be made for commanders and field-grade officers who operate in high conflict areas;
- all manuals used to teach war tactics should be opened to review to insure that the laws of war are properly taught. Much of the material distributed by the government and armed forces simply repeats Common Article 3 and Protocol II, without giving case examples specific to Colombia that would allow security force officers and government officials to accurately describe and characterize violations. Many of those who need education in the laws of war are not legal professionals and need real-life examples in order to put the principles to the test. The review committee should be an independent one chaired by the Attorney Generals Office and including representatives from the Public Advocates Office, the ICRC, the office of the U.N.High Commissioner for Human Rights, and human rights groups as well as internationally recognized experts;
- to advance their careers, officers must be required to pass a test in the laws of war to demonstrate their understanding of the principles and their practical application. In addition, their record in the field of observing the laws of war should be another important element in considering promotion.
· The UC-ELN frequently attacks Colombias oil pipeline to extort money and make a political point about its opposition to the way Colombia deals with the multinational corporations. Often, the government alleges that the oil spills that result do lasting damage to the water and soil that farmers depend on for their survival which, if true, would also violate Article 14 of Protocol II. However, there is little information about the environmental effect of oil spills caused by attacks on the oil pipeline. Human Rights Watch urges the government to commission a scientific study of the environmental and health damage of oil spills to better understand their effect on the civilian population.
· The government should take immediate steps to fully implement Law 387, which provides for protection and assistance to the forcibly displaced. The protection of human rights and the observance of the laws of war are essential components of any acceptable and long-term solution to the problem of displacement, and all future legislation to address forced displacement should fully incorporate these principles.
· The government should support the return of the forcibly displaced to their homes only when the safety of these civilians is fully assured and they return voluntarily.
· The Colombian government should implement United Nations and Inter-American Commission on Human Rights recommendations regarding the continuing high level of human rights and laws of war violations.
To the AUC, the FARC, the UC-ELN, and the EPL
· The AUC and guerrillas have failed to respect the most fundamental principles that characterize an independent and impartial tribunal, in accordance with Article 6 of Protocol II. Therefore, these groups should stop the practice of carrying out sentences based on these illegal and abhorrent procedures.
· These parties to the conflict should negotiate a mechanism to safely release combatants taken hors de combat.
· The AUC and guerrillas should unilaterally and unconditionally end the practice of hostage-taking.
· All parties should declare publicly their intent to abide by the terms of the Mine Ban Treaty and to cease the use, stockpiling, production, and transfer of anti-personnel mines, and destroy their remaining supplies.
To the international community
· We urge the office of the United Nations High Commissioner for Human Rights to continue its important work documenting reports of human rights and laws of war violations in Colombia.
· We encourage Francis Deng, the special representative of the United Nations Secretary General on Forced Displacement, to return to Colombia for a follow-up visit.
To the government of Panama
· We call on the government of Panama to abide by its commitments under the Convention on the Status of Refugees and cease forcibly deporting Colombian refugees.
To the European Union
· The European Union has a moral as well as a formal obligation under the terms of its cooperation agreement with Colombia to continue pressing the authorities and all parties to the conflict to stop the abuse of civilians in Colombia and to insist on accountability for abuses.
· The European Union should increase funding to the European Community Humanitarian Office (ECHO) to assist forcibly displaced communities in Colombia. In addition, the European Commission should increase funds to non-governmental human rights organizations and allocate funds to the Human Rights Unit of the Attorney General's Office to strengthen their work in documenting human rights and laws of war violations in Colombia.
To the United States
· The United States has a special role to play in Colombia because of its close ties with and aid to the security forces. Upholding respect for human rights and the laws of war should be a central part of U.S. policy in Colombia.
· The U.S. government should continue enforcing Section 570 of the Foreign Operations Appropriations Act, the so-called Leahy amendment, and should strengthen its monitoring of military units that receive U.S. military aid. The Leahy amendment prohibits funds from being provided to any unit of the security forces of a foreign country if the secretary of state has credible evidence that such unit has committed gross violations of human rights, unless the secretary determines and reports to the congressional committees on appropriations that the government involved is taking effective measures to bring the responsible members of the security forces unit to justice. In an important and welcome move, the State Department has chosen to apply the spirit of the Leahy amendment broadly, to include all types of aid, including presidential drawdowns. These conditions have played an important role in sending a strong message to the Colombian security forces that the United States considers respect for human rights a key part of bilateral relations. That message needs to be strengthened by aggressive U.S. monitoring of units that receive aid, including ensuring that soldiers accused of committing abuses are fully investigated and, if believed responsible, prosecuted by an independent and competent court. The procedures used to monitor these units must not be kept secret; transparency is a key part of any mechanism meant to monitor the compliance of an institution, like the Colombian military, that has amassed such a horrifying human rights record.
· The U.S. Defense Departments training and equipping of Colombian security force units should be cleared through the procedures established for the Leahy amendment. At present, such procedures are not applied by the Defense Department for these activities. Human Rights Watch believes that U.S. policy must be consistent in its support for human rights and international humanitarian law, and that all U.S. security assistance, including training, should be subject to the Leahy amendment.
· To strengthen the rule of law and promote human rights, we encourage the United States to publicly support the Human Rights Unit of the Attorney Generals Office, and in addition, allocate funds to support their work.
· The United States should reform its drug certification process and ensure that it continues to allow and fund courses on human rights and international humanitarian law even when a country is decertified.