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 I)

[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 I of a two-part post.]

Introduction 

In terms of international law, the region of the Americas is going through what the so-called ‘Chinese curse’ would label as interesting times -as can be seen, for instance, with the recognition of Juan Guaidó as the rightful interim president of Venezuela by some states in the region, followed by support of Maduro by China, Russia and others, and the ensuing dispute on who is the rightful Venezuelan ambassador to the OAS.

Another recent development that merits analysis is the bomb attack against a police academy in Bogota that was carried out by the Colombian ELN guerrilla a few days ago, on January 17 -in circumstances that are still unclear, a guerrilla member entered into the academy with a car, which exploded, being it uncertain if it was remotely activated or not, killing 20 persons and wounding many other, including children, as a 3-year-old girl.

Indeed, current discussions on the aftermath of the attack in which third states, organizations as the OAS, and the ELN itself participated, address diplomatic and legal questions such as whether the attack itself contravened international humanitarian law standards; or if an agreement entitled as a ‘protocol’, deemed as secret and known only to its parties in its very first paragraph, is legally binding for its parties and requires Cuba, and the other states sponsoring peace talks —Venezuela, Chile, Norway and Ecuador—, to give safe passage to ELN members or if, conversely, Cuba is under an international obligation to extradite ELN leaders that had been present in Havana with the alleged intention of negotiating with the Colombian government. I will explore those issues in two posts. The first one will examine whether IHL may have been contravened by those who carried out the attack, and a second one will explore whether Colombia and the guarantor states that signed the agreement are legally forbidden to ask for or contribute to the extradition of ELN members in Havana to the authorities in Bogota.

1. An analysis in light of IHL

At the outset, it is interesting to note that in the website Voces of the self-proclaimed National Liberation Army (being ELN the Spanish acronym of the group, which would not qualify as a national liberation movement due to its not acting against colonization, foreign occupation, or violations as apartheid), the aforementioned guerrilla group issued a statement in which it was expressed that the attack was consistent with the law regulating the conduct of hostilities during armed conflicts. According to the statement, this was so because the academy was regarded by the group as a military facility where people who would later carry out military and intelligence actions against the ELN were trained. This affirmation is interesting for, at least, two reasons: firstly, it is striking to someone as myself who has read in the past the opinions of some Colombian guerrillas as to the alleged inapplicability of IHL due to its ‘bourgeois’ origins. Contrary to this, the guerrilla accepts that its conduct is governed by IHL, which may be explained in terms of an analysis of reputation costs and potential transnational actions that guerrilla leaders or spokesmen may have considered, but also shows how socialization and other internalization dynamics may have impacted the discourse of the guerrilla. Secondly, the train of thought presented in the statement does reveal at least some familiarity with IHL, considering that notions of combatants and military objectives are implicitly handled. It remains to be discussed, though, whether the assertion is a legally sound one.

As to whether policemen can be considered as combatants, some have answered in the negative in Colombia. Nevertheless, in my opinion it is not possible to dismiss the question so easily, considering that members of the police in Colombia, due to the dynamics of the armed conflict and institutional decisions, have sometimes engaged in combat against guerrillas and other armed actors. According to the ICRC and experts in the field, absent a formal inclusion of certain agents in the armed forces of a state, the decisive factor when identifying which bodies and agents can be treated as combatants is considering whether a given body engages in hostile action in an armed conflict. In light of this, one could say that some members of the police -most likely not those who patrol the streets of major urban centers, among others- may perhaps be regarded as combatants under IHL. Indeed, in the explanation to rule 4 of the customary IHL database of the ICRC, it is said that:

“Incorporation of paramilitary or armed law enforcement agencies into armed forces is usually carried out through a formal act, for example, an act of parliament. In the absence of formal incorporation, the status of such groups will be judged on the facts and in the light of the criteria for defining armed forces. When these units take part in hostilities and fulfil the criteria of armed forces, they are considered combatants”.

In any case, the previous analysis does not mean that the ELN’s conduct necessarily observed IHL. This is because of several factors. Firstly, the attack was carried out in the midst of a ceremony in which some of the police students were going to be promoted to a higher rank, and their relatives or friends -undeniably civilians- were attending. Secondly, the car suddenly entered in a rushed manner that prevented a careful analysis of who was going to be hurt and the prevention of harm to civilians, and the bomb was detonated in what can be considered as an indiscriminate manner that could hurt civilians or -if there were any- combatants alike in a random way. Furthermore, no care was taken to prevent or minimize the deaths or injuries to civilians who would certainly be present (relatives, friends, and non-combatant police officers). Therefore, the principle of prevention, the prohibition of indiscriminate attacks, and also probably the prohibition of inflicting disproportionate harm were breached. If one considers that this attack was part of a modus operandi of the ELN that disregards civilian wellbeing and rights, often kidnapping them, attacking pipelines causing severe environmental damage, and else, one may argue that the attack was part of a plan or policy against the civilian population that thus permits to consider the conduct as not only potential war crimes, but also as crimes against humanity -after all, the Elements of Crimes make it clear that members of non-state groups with those plans, and not only of states, can be criminally accountable for the aforementioned crimes. Moreover, some have argued that those studying in the Colombian police academy were students and had not graduated as police agents yet, and could thus not be regarded as policemen at the time of the events —a relevant argument even if one were to consider some policemen in Colombia as combatants. Acting against ‘potential’ combatants would be a perversion against what IHL stands for. Finally, one could argue that the guerrilla also violated human rights -this is a contested vision that I have defended elsewhere; and the Inter-American Commission on Human Rights condemned the attack, without expressly labelling it a human rights violation.