An Analysis of the Legal Obligations of the ELN Guerrilla and Third States in the Aftermath of the Attack Against a Colombian Police Academy (Part II)

[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 La Sabana University, Colombia. This is Part II of a two-part post. Part I can be found here.]

The extradition debate

Even though there has been a non-international armed conflict in Colombia, under domestic law members of the ELN may be lawfully prosecuted by the state for their action against members of the Colombian armed forces. This is so because non-state groups’ members do not enjoy combatant immunity, which can be explained by state reluctance, expressed in practice and opinio juris, to empower rebels and those who defy their authority. Colombians marched in large numbers to express their condemnation of the attack, and president Duque asked Cuba to extradite ELN leaders present in Havana for negotiation purposes back to Colombia. However, Cuba responded by saying that it could not do so due to the applicability of an agreement entitled as a ‘protocol’, entered into by the former president, Santos, and the guerrilla, and also signed by ‘guarantor’ states as Cuba or Norway. The agreement enshrines what must happen when ELN members are to return to Colombia after the failure of peace negotiations, setting forth that the group will send coordinates of where they will arrive in Colombia for the state to temporarily leave the area and ensure their safe return. Also, it is indicated that if the members go through Venezuela, they are entitled to the accompaniment of Venezuelan agents and those of two other guarantor states. The Colombian government responded by saying that Cuba is under an obligation to act against terrorism, as highlighted by pronouncements of the OAS Secretary General and the president of the United Nations Security Council condemning the attack and calling for justice against the perpetrators. The government further argued that it did not consider itself bound by an agreement entered into by the previous administration and proceeded to withdraw from it. Norway said that it took notice of the Colombian opinion but that it had to live up to its international commitments. Chile declared, as another of the guarantor states, that perpetrators are to be brought to justice.

What can we make of this thorny debate? There are no easy answers. Firstly, I consider that the protocol can be considered as a special agreement under IHL, which may not only declare but also supplement applicable IHL rules, even concerning questions outside the IHL regime strictly speaking. To my mind, the agreement is opposable to the state as such, and the incumbent administration cannot ignore it on the basis of disagreements with the previous one as to its content. Furthermore, withdrawals are governed by the principle of good faith (made concrete, among others, in the notion of reasonable or stipulated periods of notice), and thus do not take effect immediately, in order to give a proper preparation time to the other parties, as case law and standards have indicated (e.g. art. 56 of the Vienna Convention on the Law of Treaties). Secondly, some have said that the Colombian government could maybe invoke material breach as a cause of suspension, but in a multilateral agreement it would only suspend the obligations of a victim party towards the responsible one, not the whole treaty relations unless all non-responsible parties agree otherwise, reason why the Norwegian position seems sound at first glance -its obligations would remain in force even if Colombian ones were suspended. Thirdly, though, one could wonder whether there has been a violation of peremptory law —to my mind, if there was indeed an international crime, as argued here, one can conclude this, with those crimes being prohibited by jus cogens. This does not amount to questioning the validity of the agreement or its termination, because its content is not under discussion in abstracto. Rather, the questions may be whether its implementation and interpretation given the circumstances would lead to impunity, and thus if the treaty or a given interpretation should be not used when such application or interpretation contravenes or impedes the full effectiveness of peremptory law —this argument seems persuasive to me. It merits recalling that the ICTY held that:

“[O]ne of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty- making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice […] other consequences include the fact that torture may not be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption”.

While the ICJ has made a stark distinction between substantive and procedural matters when exploring peremptory law arguments, and hence one could at first glance be tempted to say that the sanction of a conduct allegedly contrary to jus cogens may take form in different ways or that perpetrators could be detained after their departure from the island of Cuba in accordance with the protocol, the fact that much of the ELN often operates from Venezuela -some say with its consent- to escape from state action is a fact that cannot be ignored, since its members will thus perhaps never be apprehended or their detention will be made quite difficult, and thus there will be impunity, which some consider incompatible with peremptory law when it has been breached. In any case, even if the protocol is implemented and one considers it as applicable, at the very least it can be agreed that at some point, namely after the period of 15 days subsequent to the end of the peace dialogues indicated in the agreement, the principle aut dedere aut judicare will become applicable, especially because there were crimes intended to bring about fear or to exert pressure on the Government to reach a given policy decision, as Cassese and other judges of the Special Tribunal for Lebanon argued in terms of the definition of terrorism. Furthermore, in its advisory opinion OC-25/18 the Inter-American Court of Human Rights has also said that the aforementioned principle may be applicable when serious violations of human rights have been perpetrated, being extradition a means to respond to such abuses, and being states forbidden from protecting those involved in the respective crimes directly or indirectly (paras. 91, 92).

Finally, it merits pondering upon whether ELN negotiators can be held accountable for the attack. If not, their detention in this case and in connection with the bomb detonation would be almost certainly contrary to the protocol legally groundless. This is difficult to prove. They have denied any implication in the operation and claimed to have abided by their commitment to Cuba to only work towards peace efforts while in the island. Regardless of whether this is true or not, command responsibility (art. 28 of the Rome Statute) is difficult to invoke here due to the fragmented nature of that guerrilla’s ranks and the necessity to prove that they knew or should have known about the specific attack in light of the circumstances and their circumstances. Recent developments in the ICC shed light on how crucial evidence is for conviction purposes.

Conclusions

The issues of the observance of IHL by the ELN guerrilla and the possibility of third states, including those who vouched for the implementation of the protocol, extraditing (or prosecuting) its members without applying the content set forth in that agreement, have been highly disputed, which is understandable given what is at stake. Public opinion is enraged with an attack in the midst of the Colombian capital, and there have been understandable extra-legal arguments of both those against and in favor of observing the agreement. The former argue that there cannot be impunity and that terrorist and other serious acts are not covered or protected under the agreement; while the latter say that there are state —not government— commitments at stake, that not extraditing does not equate with impunity, and that ignoring the agreement would set a dangerous precedent for future peace negotiations, perhaps even discouraging groups from engaging in them —others rebut that negotiating does not amount to permitting serious crimes being perpetrated and promising to not bring to justice. Moreover, doubts remain as to the responsibility of the ELN leaders in Havana —which is quite far from clear in my opinion. All of this evinces how interrelated politics and peace negotiations are, and how different parties engage in a de facto ‘policy approach’ to international law, trying to invoke that law supports them by referring to components of the same system with different —contradictory— results, with no clear answers but rather opportunities for argumentation. Pragmatism and legal —and soft law— standards, as usual, are in some tension in this case —in the arguments of both parties.