Guest Post: The Suspension of the Colombian Peace Talks and the Illegality of the Deprivation of Liberty of Members of State Armed Forces in Non-International Armed Conflicts

by Nicolás Carrillo-Santarelli

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the Autónoma de Madrid University.] 

Introduction

Colombian President Juan Manuel Santos announced on Monday, November 17,2014, that the negotiations between the Colombian Government and the FARC guerrilla seeking to reach a peace agreement were suspended because of information that the FARC kidnapped a Colombian general, an officer, and a lawyer (see here and here [in Spanish]).

While the reaction of the non-state armed group is yet to be seen, it is interesting to take into account its likely position regarding the type of conduct it is accused of having perpetrated. On Sunday November 9, 2014, the FARC kidnapped two Colombian soldiers, called César Rivera and Jonathan Andrés Díaz, but claimed that, in its opinion, far from breaching international humanitarian law, the group acted in accordance thereof. The FARC considers the soldiers to be captured as ‘prisoners of war’ and claims to have treated them in accordance with humanitarian principles by respecting their rights to life and integrity (Spanish) (it must be noted that, in the past, those deprived of their liberty by the FARC have notoriously been treated in an inhuman fashion and to the detriment of the enjoyment of their human rights [see here and here]).

Illegality of all deprivations of liberty attributable to non-state armed groups during non-international armed conflicts

It is important to examine if the claim of the FARC can be consistent with international law: namely, whether a non-state armed group can deprive individuals of their liberty during non-international armed conflicts under International Humanitarian Law (IHL). If the victims are civilians, the answer is clearly a negative one. Furthermore, in a scenario as the Colombian one, in which many civilians have suffered the deprivation of their liberty and their being placed in harsh conditions and treated cruelly or even killed at the hands of the guerillas, which have also extorted money as a condition to release some of them, it can be said that those deprivations of liberty have been carried out “as part of a widespread or systematic attack directed against any civilian population”, and so that those who perpetrate them commit a crime against humanity, according to article 7.e of the Rome Statute of the International Criminal Court. From the point of view of human rights law, it can also be argued that the conduct in question amounts to a violation of those rights (and if it is accepted that non-state entities have human rights obligations, the armed groups would breach them as well).

When it comes to the legal analysis of the deprivation of liberty of members of the Colombian armed forces by the FARC, it is important to begin by noting that the regulation of international and non-international armed conflicts is not always identical or even similar. In fact, applying the rules of the former to the latter may sometimes be problematic, being this one of those events. In this regard, while treaty and customary norms permit the detention of prisoners of war during international armed conflicts, as Rule 99 of the Customary IHL Database of the International Committee of the Red Cross (ICRC) indicates, there is no indication that such a rule is applicable in non-international armed conflicts. In fact, the aforementioned rule, dealing with deprivation of liberty, when discussing non-international armed conflicts, focuses on the human rights standards governing the deprivation of liberty attributed to States, stressing that it must be lawful and non-arbitrary; and so implicitly indicates that there is no legal authorization for non-state armed groups to deprive anyone of his or her liberty or to detain them. In doctrine, this is confirmed by the analysis of conflicts such as the Israeli-Palestinian one, regarding which it has been said that:

“[A]ttributing Hezbollah acts to a State would [mean] that each party to the conflict would be bound to grant Prisoner of War (POW) status to captured enemy combatants who meet the criteria of Article 4(A)(1) or (2) of Geneva Convention III. Israeli soldiers, as members of the regular army, would be automatically entitled to POW status under 4(A)(1), while Hezbollah fighters would probably have to meet the conditions of Art. 4(A)(2) as members of “other militia” in order to be granted POW status.”

The previous analysis indicates that combatants can detain others as prisoners of war if a conflict is carried out between States, that is to say, if it is an international one; and one can infer that such authorization does not exist otherwise, as during non-international armed conflicts.

It is important to turn to the examination of international practice and opinio juris, from which it may be possible to glean the interpretation of different actors of the law applicable to the conduct in question and possible customary developments. First of all, if we take into account that many cases in which members of armed forces have been captured by non-state armed groups have taken place in Colombia, it is possible to consider such State as being “specially affected” by the issue, and so we can regard it as one whose opinion and practice are relevant because of the opportunities it has had to voice its opinion on the matter, and also as a State that can have a special weight in the development of customary law dealing with the problem under examination.

In light of this, it is pertinent to note that Colombia has constantly and consistently condemned the conduct under examination and declared it to be unlawful and criminal. In this regard, it is pertinent to mention that articles 168 and 169 of the Colombian Criminal Code prohibit kidnappings regardless of whether the victims are civilians or not, which is relevant considering that the Code mentions IHL.I Moreover, it is worth mentioning that the European Union criticized the alleged act and urged the FARC to release the detainees, thus implicitly endorsing the idea that the conduct in question is unlawful and not authorized by international law. The United Nations also voiced its concern over the kidnappings and their impact on the peace talks, urging the FARC to release the persons it deprived of their liberty and to respect international humanitarian law, which is quite telling (for more, see here and here [in Spanish]).

Furthermore, according to international human rights law, States have an obligation to protect individuals from deprivations of their liberty committed by non-state armed groups, in the understanding that such deprivations are contrary to the enjoyment of human rights and that those actors can be regarded as violating human rights if they deprive someone of her or his liberty. In my opinion, this follows from the following opinion of the Human Rights Committee:

“States parties have the duty to take appropriate measures to protect the right to liberty of person against deprivations by third parties. States parties must protect individuals against abduction or detention by individual criminals or irregular groups, including armed or terrorist groups, operating within their territory.” (For the whole document, click here.)

Some could ask whether the idea that some members of non-state armed groups can be understood as having a ‘continuous combat function’ somehow equates them with State armed forces and entitles them to detain enemy combatants. I disagree with this opinion insofar as the aforementioned notion, discussed by the International Committee of the Red Cross, serves only to examine when members of non-state armed groups can be lawfully targeted, and does not empower them (after all, common article 3 of the 1949 Geneva Conventions says that obligations of non-state parties to conflicts do “not affect [their] legal status”; and also because the rationale of prohibiting detentions by non-state armed groups persists: to avoid legitimizing acts contrary to the liberty of individuals.

Conclusion

In my opinion, the object and purpose of, and the reasons that justify prohibiting detentions by non-state armed groups include the following: the fact that it is undesirable to allow non-state actors to deprive persons of their liberty, because this would lower human rights standards and increase the actors that can restrict those rights in a conflict scenario, which would be too risky; the lack of legitimacy of non-state rebel or insurgent groups, which may be tempted to curtail human rights and victimize populations who would often lack remedies and venues of redress in relation to their abuses, reason why they must not be equated with official armed forces; or the desire of States, who largely control international law-making, to prevent non-state actors from being authorized to deprive their agents of their liberty under international law.

The deprivation of the liberty of civilians affects them and their families, and their suffering is intensified given the uncertainty of their fate at the hands of de facto groups. That suffering must never be forgotten, especially because authorizing non-state detentions under IHL could amount to condemning people to be deprived of their liberty for uncertain periods of time, perhaps even indefinitely; and would allow victims to be used as means of groups who want to gain influence, money or power by using the persons they detain, and this goes against their human dignity.

The reaction of President Santos may seek to reinforce and send the message that the conduct attributed to the FARC is unlawful and so try to, first, gain support and indicate to his constituency and the international community at large that acts of the sort are unacceptable, are still perpetrated, and will not be tolerated; and secondly, he may try to change the attitude of the FARC by resorting to expressive effects and socialization or persuasion techniques, trying to make it cease the conduct it has sadly so often engaged in. The fact that the measure he adopted consists in a suspension seems to endorse this, and leaves the door open to the resumption of peace talks, being their success both important and necessary for the people of Colombia, who have for too long suffered the now longest armed conflict in the Western Hemisphere. Fortunately, there seems to be hope that the victims may be released and the peace talks resumed (after all, if the FARC sincerely want the process to succeed, they may release them, and this case may be one in which the different parties try to test each other, but they must never do so at the expense of human beings).

http://opiniojuris.org/2014/11/19/guest-post-suspension-colombian-peace-talks-illegality-deprivation-liberty-members-state-armed-forces-non-international-armed-conflicts/

11 Responses

  1. It would definitely be problematic if FARC’s actions were deemed legal under international law. The precedent set by it would give impetus to other armed non-state actors, such as the acts of Hezbollah as previously mentioned, but also possibly the rebels in eastern Ukraine. Here, I absolutely agree that the principles of state sovereignty overrule any claims of FARC that it is following the rules of war.

  2. FARC are actors in a non-international armed conflict. They may try to legitimize their struggle by granting to captured soldiers the prisoners of war status. However, any activites related to the conflict are per se illegal. Even if the FARC treat prisoners as POW, their capture and detention is a crime. According to the ICC Statute, a war crime.

  3. As correctly stated by the article, “there is no indication that there is a rule that allows the detention by non-State actors (such as a terrorist group) of members of the armed forces in a non-international armed conflict”.

    Thus, even if FARC treats well the prisoners, such detention is illegal under international law, it gives rise to the State responsibility (Colombia) and constitutes a war crime under Article 8(iii)(c) of the Rome Statute.

    Great article.

  4. This is, of course, a contentious issue. The crux of the debate lies in this paragraph:

    “Some could ask whether the idea that some members of non-state armed groups can be understood as having a ‘continuous combat function’ somehow equates them with State armed forces and entitles them to detain enemy combatants. I disagree with this opinion insofar as the aforementioned notion, discussed by the International Committee of the Red Cross, serves only to examine when members of non-state armed groups can be lawfully targeted, and does not empower them (after all, common article 3 of the 1949 Geneva Conventions says that obligations of non-state parties to conflicts do “not affect [their] legal status”; and also because the rationale of prohibiting detentions by non-state armed groups persists: to avoid legitimizing acts contrary to the liberty of individuals.”

    Without taking sides in the dispute between FARC and Colombia, there seems to be an awkward asymmetry between the rights and obligations of both groups in the example above. I don’t really see how this squares with IHL’s emphasis on reciprocity and its strict separation from philosophical considerations of ‘just war’ and ‘legitimacy’. If the above claim is right, then IHL establishes criteria for targeting rebels, but grants them none of the privileges which normally mirror this not insignificant burden. Likewise, IHL may perform a function of withholding ‘legitimacy’ to a struggle against tyranny and for self-determination.

    In raising these two points, I don’t mean to intervene in the debate about FARC. I know next to nothing about the FARC, but I am interested in the rigorous and coherent application of legal principles. That’s what I would like to explore.

  5. I would like to begin by thanking you for your comments and discussions. I will briefly give my opinion on two issues raised in the comments:
    First, as to the possibility of the actions of the FARC engaging the responsibility of the State, in this case the Colombian one, I think that such engagement of State responsibility could happen but is not automatic. In my opinion, such State responsibility would arise either if the State has been negligent, that is to say if it fails to make an effort with the required due diligence that has the prospect of preventing or responding to acts of deprivation of liberty attributed to non-state actors; if it effectively controls non-state conduct, which is not likely the case here insofar as we are talking about a group with which the State is confronted (mind you, some State agents could perhaps cooperate with the group); if the State is complicit in non-state misdeeds or if the insurgent group successfully takes over State power, in which case its own wrongful acts are attributed to the State it goes on to control.
    Secondly, as to the idea that IHL should grant a strict symmetry to all combatants, I must say that I disagree for the following reasons: first of all, IHL does not operate with a logic of reciprocity (for instance, reprisals against the civilian population are outlawed), and neither does human rights law or criminal law operate with such a logic. Furthermore, victims have access to remedies against State misdeeds, and have guarantees as the habeas corpus, which may not be formally present in relation to non-state entities (they must release those they kidnap, nonetheless): the idea that IHL seeks to alleviate the suffering of victims during armed conflicts, and the risks of further non-state violations support this. As to the continuous combat function idea, it is related to targeting exclusively, not to other capacities as detention, and so do not serve as a basis to defend the idea of a right of non-state armed groups to detain non-state actors. If there is, for instance, a national liberation group that fights against colonialism, racist regimes or foreign occupation, there would be an international conflict, not a non-international one, and the analysis could be a different one.

  6. Thanks for your comment. I remain unconvinced by the theoretical argument you are propounding. You say IHL does not operate on the basis of reciprocity, and then suggest that this may be so because reciprocity is not relevant in IHRL and ICL. I am afraid I fail to see the relevance of this comparison. It’s comparing apples and oranges.

    Reciprocity is a key concept in the context of IHL, and the whole point of your post is that you deny a right to only one party to the conflict. You claim rebels in NIAC can’t detain because… well, because NIAC says so, and the ICRC customary study supports this view. You don’t quote any countervailing authority, though of course you are probably aware that there are people who disagree with the asymmetry resulting from this view.

    From a theoretical standpoint, it isn’t really apparent to me why you would withhold this right to rebels in NIAC? You say something about “legitimacy” in your post, but this is of course completely circular because legitimacy is in the eye of the beholder. One man’s terrorist in another man’s freedom fighter. In your example, there are plenty of people who think FARC’s struggle is legitimate and the government’s policies are illegitimate. Again, I don’t care much about FARC and Colombia, so in raising this I am just illustrating how shallow and pointless the use of the term “legitimacy” is from a theoretical standpoint.

    Again, I understand your claim of asymmetry is grounded in the majority reading of CA 3, and the ICRC Customary Study. But from a theoretical standpoint, these majority interpretations of the law are hard to square with IHL’s foundational principles. What exactly makes FARC’s detention of state combatants unacceptable beyond this vague notion of withholding ‘legitimacy’? You say something about the risk of further “non-state violations” as if the same risk didn’t exist with respect to state violations. A more thorough analysis of your understanding why reciprocity is irrelevant would be welcome.

  7. Dear Maya,
    First of all, thank you once again for the discussion and for sharing your ideas. I am aware that the issue can be regarded as complex from a factual point of view, but I do consider that the deprivation of liberty by non-state actors is not permitted in lex lata (some do disagree, as non-state groups and authors as Santiago Vargas, as shown in an article written in Spanish and found here: http://confidencialcolombia.com/es/1/1306/14669/Ni-secuestro-ni-retención-indebida-brigadier-general-rubén-dar%C3%ADo-alzate-farc-prisionero-de-guerra-proceso-de-paz.htm).
    The fact is that in non-international armed conflicts States and non-state actors are not treated equally in legal terms (States may unilaterally authorize non-state actors to have more capacities, for instance recognizing belligerent rights, as may happen if they prefer to encourage a humane treatment of their officers who are captured), and in this case non-state groups are not granted a capacity that States do have. Now, from the point of view of a critical analysis of law, would a change be desirable de lege ferenda? I doubt so. First of all, because entitling non-state actors to detain in light of the idea that some of them may have legitimacy in practice is a nuance that may be improperly handled in abstract or general legal terms: while some groups may operate as “freedom fighters”, perhaps, others clearly do not. In the Colombian scenario, in which the FARC have recruited children, killed unarmed hostages and chained hostages to trees, placed bombs around the neck of a victim and made it explode afterwards, among other crimes, it is evident that further legitimizing their actions may be too risky and would give them a sense of legitimacy (precisely) and have an impact on their conduct and attitude, perhaps encouraging more misdeeds. As Fred Halliday has explained, IHL regulations may have a serious expressive impact on non-state culture. So, shall we have a norm saying that “legitimate” non-state actors may detain and others cannot? I think that it is quite likely that all non-state groups will claim to be legitimate, and thus we would de facto enable all of them to detain and abuse victims. What is the alternative, to have a formal declaration of legitimate actors? That would be at the hands of States, probably, and so States fighting actors will refuse to grant recognition of legitimacy or foreign States may be tempted to give them to further their own interests, which may well be selfish and strategic.
    Moreover, it is certain that States can commit abuses, and in fact the Colombian State has committed them and been condemned as a result, for instance by its own Courts and the Inter-American Court of Human Rights. But among the differences between it and non-state groups are the formal access to remedies and habeas corpus that those detained by State agents can resort to, which is an option not formally available to victims of the FARC. Moreover, those disatisfied with a domestic decision can exhaust domestic remedies and file an application against the State before international bodies, something that is not currently possible with non-state groups, even though I do think that they are bound by duties to respect jus cogens norms protecting human dignity. Because of this, perhaps transnational litigation may be an option, but with procedural restrictions on when these venues may be used, as happened with the ATS after the Kiobel U.S. Supreme Court decision in relation to corporations, they may not always be available.
    I am aware that the issue is thorny in practice, for instance when there are rebels who are fighting a regime seen as problematic: perhaps one could think of the Syrian scenario, but then again: do we want to empower all Syrian rebels to have entitlements usually reserved to States? That would include Jihadists. Would foreign recognition of those rights not amount to intervention in the domestic affairs of other States? Maybe the issue of the recognition of Governments could have an impact (but this may be destabilizing due to permitting political reasons to have a tremendous impact on the legal rights of parties to a conflict), just as the transformation of the non-international conflict in an international one could.
    Once again, thanks for the discussion. I think the topic has difficulties in practice, and I like to constantly think over my own conclusions on legal matters, which is something that everyone should do, reason why open discussions are so important. This is why international law blogs, with the openness of the opportunity of debates they permit, are so important. And this is why I am grateful to the staff of Opinio Juris for allowing me to participate.

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