Legal Standards

Standards Applicable to Colombia’s Guerrillas

Colombia’s guerrilla groups are bound by both customary international humanitarian law and the Geneva Conventions, insofar as they are relevant to internal armed conflict. International humanitarian law requires that combatants be distinguished from non-combatants.86 Accordingly, parties to an internal armed conflict are barred not only from directly targeting non-combatants, but also from engaging in indiscriminate attacks. Indiscriminate attacks include: “(a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by [Protocol 1 to the Geneva Conventions]; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”87

In addition, if guerrilla members intentionally direct attacks against civilians using antipersonnel landmines, then they could be subject to prosecution for war crimes under the Rome Statute of the International Criminal Court.88 Should such attacks be shown to be part of a broader, systematic attack directed against a civilian population, they could rise to the level of crimes against humanity under the Rome Statute.89  Under such circumstances, guerrilla commanders such as “Manuel Marulanda,” the leader of the FARC, could become subject to prosecution by the Court under general principles of command responsibility.

Colombia’s Obligations to Survivors

As already noted, Colombia is a party to the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction (the “Mine Ban Treaty”). The Mine Ban Treaty requires state parties in a position to do so to provide assistance for the care and rehabilitation, including the social and economic reintegration, of landmine victims.90

The Convention does not specify in detail how states parties are to implement this obligation. However, at the First Five-Year Review Conference of the Mine Ban Treaty (the “Nairobi Summit on a Mine Free World”), states parties to the Mine Ban Treaty committed themselves to implementing the Nairobi Action Plan 2005-2009. That plan sets out a number of specific actions that states parties—particularly those that, like Colombia, are among the 24 countries identified as having significant populations of landmine survivors—commit themselves to take on victim assistance.91

Colombia has thus committed itself to: establish and enhance healthcare services needed to respond to the immediate and ongoing medical needs of landmine victims; increase national physical rehabilitation capacities; develop capacities to meet the psychological and social support needs of landmine victims; actively support the socio-economic reintegration of victims; ensure that national legal and policy frameworks effectively address the needs and fundamental human rights of landmine victims; develop or enhance national landmine victim data collection capacities; and ensure that in all victim assistance, emphasis is given to age and gender considerations.92  According to the Action Plan, states parties agree to undertake these actions by 2009.93

While the Nairobi Action Plan is not itself legally binding, it does reflect actions that the Colombian government should take in fulfillment of its obligations under Article 6 of the Mine Ban Treaty.

In addition, Colombia has signed, but has yet to ratify, the recently adopted UN Convention on the Rights of Persons with Disabilities.94 The Convention was adopted “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”95

States parties to the Convention undertake a number of obligations towards those with disabilities, including those who have sustained disability as a result of a landmine. Countries must identify and eliminate obstacles and barriers and ensure that persons with disabilities can access their environment, transportation, public facilities and services, and information and communications technologies.96 Persons with disabilities must be able to live independently, and have a right to an adequate standard of living and social protection; this includes public housing, services and assistance for disability-related needs, as well as assistance with disability-related expenses in case of poverty.97 The Convention also re-iterates that persons with disabilities have the right to the highest attainable standard of health without discrimination on the basis of disability.98 To enable persons with disabilities to attain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life, countries are to provide comprehensive habilitation and rehabilitation services in the areas of health, employment, education, and social services.99 Although the Convention is awaiting enough ratifications to enter into force, and is therefore not technically binding, Colombia has signed the Convention and should be putting in place the measures necessary to meet the requirements of the Convention and to proceed to ratification.

International Actors’ Obligations to Mine Survivors

The Mine Ban Treaty requires that all states parties in a position to do so provide victim assistance.100 In fulfillment of this obligation, through the Nairobi Action Plan, all states parties committed themselves to assisting others with a demonstrated need for support on victim assistance.101

The UN Convention on the Rights of Persons with Disabilities specifically recognizes the role of international co-operation in the realization of the purpose and objectives of the Convention.102 The Convention has 95 signatories to date, and all parties undertake to engage in co-operation as necessary.

86 Geneva Conventions of 12 August 1949, entered into force October 21, 1950. Common Article 3 of the Geneva Conventions, which is binding on non-state actors, states the following:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely….

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture …
(c) outrages upon personal dignity, in particular humiliating and degrading treatment….

 In addition, Protocol II, which applies to internal armed conflicts, provides that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations…” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978, art. 13.

87 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978, art. 51(4). Although this protocol applies only to situations of international armed conflict, the provisions prohibiting indiscriminate warfare are part of customary international law and are binding on all parties to both internal and international conflicts.

88 Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art 8(2)(e)(i).   Colombia ratified the Rome Statute on August 5, 2002, with a declaration providing that, pursuant to Article 124 of the Rome Statute, for a period of seven years (i.e., until 2009), Colombia does not accept the jurisdiction of the Court for war crimes committed on Colombian territory or by Colombian nationals.  Starting in 2009, war crimes committed on Colombian territory or by Colombian nationals will be subject to the Court’s jurisdiction.

89 Ibid, art. 7.  The Rome Statute’s provisions on crimes against humanity are already applicable in Colombia.

90 The Convention states, “Each State Party in a position to do so shall provide assistance for the care and rehabilitation, and social and economic reintegration, of mine survivors and for mine risk education programs. Such assistance may be provided, inter alia, through the United Nations system, international, regional or national organizations or institutions, the International Committee of the Red Cross, national Red Cross and Red Crescent societies and their International Federation, non-governmental organizations, or on a bilateral basis.” Mine Ban Treaty, art. 6.

91 Ending the Suffering Caused by Antipersonnel Mines: the Nairobi Action Plan 2005-2009,$File/Action%20Plan%20.pdf (accessed June 20, 2007).

92 Ibid, actions 29-35.

93 Ibid, para. 5.

94 UN Convention on the Rights of Persons with Disabilities, adopted by the UN General Assembly on December, 13, 2006, A /RES/61/106, and opened for signature on March 30, 2007.

95 Ibid., art. 1.

96 Convention on the Rights of Persons with Disabilities, art. 9(1).

97 Ibid, arts. 19 and 28.

98 Ibid, art. 25.

99 Ibid, art. 26.

100 Mine Ban Treaty, art. 6.

101 Nairobi Action Plan 2005-2009, action 36.

102 Convention on the Rights of Persons with Disabilities, art. 32.