II. APPLICABLE INTERNATIONAL STANDARDS

Human Rights Watch's assessment of the conduct of the FARC-EP is primarily guided by two sets of international legal standards: article 3 common to the four Geneva Conventions of 1949 and the 1977 Protocol II Additional to the Geneva Conventions.³ These standards extend no political recognition, status, or approval to any armed group. Their object is simply to minimize human suffering and establish respect for basic humanitarian rules, which apply even in the midst of hostilities.⁴

Common article 3 covers armed conflicts "not of an international character," and includes the internal armed conflict in Colombia. Common article 3 automatically applies when a situation of armed conflict exists. It covers all parties to the conflict. Protocol II applies when opposing forces in an internal armed conflict are under a responsible command, exercise enough control over territory to mount sustained and coordinated military operations, and have the capacity to implement Protocol II. The situation in Colombia clearly satisfies these criteria.

Among the key standards in these documents relevant to Colombia are prohibitions on the killing of civilians and of combatants who are hors de combat, hostage-taking, the use of child soldiers, forced displacement of civilians, and indiscriminate attacks.⁵

The Definition of Civilian Population
In accordance with current international practice, we define civilians as persons who do not actively participate in hostilities and are not parties to the conflict. The distinction between civilians and combatants is a key one, and one that did not appear to be understood or accepted by the FARC-EP commanders whom Human Rights Watch met in May-June 2000. Under international humanitarian rules, simply feeding a combatant, disseminating propaganda, or engaging in political activities in support of an armed group does not convert a civilian into a combatant. Instead, direct participation in hostilities must be present in order for a civilian to lose his or her protected status.⁶

The issue of intelligence gathering is particularly relevant to Colombia. Residents of territories where combatants are present necessarily come across information that could be of assistance to the parties to the conflict and they may, knowingly or unknowingly, transmit it, as occurs in Colombia. Yet the transmission of information does not in itself make such persons combatants. Among the pursuits that would not convert a civilian into a combatant are transmitting information that is gathered in the course of normal activities or transmitting information that is not of direct use in launching an attack.⁷

Fair and Impartial Trials
International humanitarian law also obligates the parties to a conflict to respect fully the fair and impartial trial guarantees contained in article 6 of Protocol II whenever they investigate and punish enemy combatants or their own fighters accused of abuses. The FARC-EP has failed utterly to respect these obligations. Though it has periodically announced trials, including some resulting in executions, they have been marked by gross violations of the guarantees set out in Protocol II.

The FARC-EP rarely informs accused persons of the charges against them or the procedure it intends to follow, and the accused are not permitted adequate means for their defense. Often, the accused are presumed guilty from the outset and they may not even be permitted to be present during the procedure. Finally, the FARC-EP offers no legal remedies to a decision, even in cases resulting in sentences of death. Such trials and executions constitute serious violations of the laws of war.

In a few cases, international pressure has led the FARC-EP to acknowledge its own responsibility for certain gross violations and to announce publicly that it will sanction the perpetrators. For example, FARC-EP commanders told Human Rights Watch's representatives in June 2000 that the two FARC-EP combatants who killed American civilians Terence Freitas, Lahe'ena'e Gay, and Ingrid Washinawatok on March 5, 1999 had been found "guilty."⁸ The FARC-EP sentenced the two killers to dig fifty-five yards of trench and clear land, a grossly inappropriate punishment for so grave a crime.

The FARC-EP Response
During Human Rights Watch's May-June 2000 visit to the Zone, we discussed these international humanitarian law standards with several FARC-EP commanders. They asserted that the standards were not applicable to the armed conflict in Colombia and, in particular, to the conduct of the FARC-EP. In these commanders' view, the standards did not apply because the FARC-EP had not expressly agreed to them, they represented "elite interests," and they were not appropriate to the Colombian context.⁹ Commander Raúl Reyes, a member of the General Secretariat, did claim, however, that the FARC-EP complies with "a good part of Protocol II."

Human Rights Watch objects to the suggestion that international humanitarian law principles are segregable, a sort of menu from which parties to the conflict can pick and choose. Such a view has no basis in international law. To the contrary, these principles are an integrated set that have at their heart the protection of the civilian population and of combatants who are hors de combat.

While the FARC-EP has at times paid lip service in the past to some requirements of international humanitarian law, it has shown little interest in compliance. Our research shows that even when commanders announce that troops under their authority have been ordered to abide by certain rules, in practice, the FARC-EP continues to violate them. Far from improving, the FARC-EP's record in this regard is worsening.

3 Colombia adopted Protocol II without reservation and it came into effect on February 15, 1996. República de Colombia, "Actividades del Gobierno de Colombia relativas a la aplicación del Derecho Internacional Humanitario," Santafé de Bogotá, December 1, 1995.

4 For more information on FARC-EP violations of international humanitarian law, see War Without Quarter: Colombia and International Humanitarian Law (New York: Human Rights Watch, 1998), pp. 131-160, 193-197.

5 Section 1 of common article 3 requires that "[p]ersons taking no active part in the hostilities . . . shall in all circumstances be treated humanely." Among other things, it specifically bars the parties to an armed conflict from killing or physically abusing non-combatants. Article 4(3)(c) of Protocol II bars the parties to a conflict from recruiting children under the age of fifteen or allowing them to take part in hostilities. Article 17 of Protocol II prohibits forced displacement.

6 Michael Bothe, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982), pp. 292-296.

7 Ibid., pp. 263-267.

8 Human Rights Watch interview, Los Pozos, Caquetá, June 3, 2000.

9 Human Rights Watch interviews, Los Pozos, Caquetá, June 2 and 3, 2000.