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

[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).