A Legal Conflict: Human Rights Or International Humanitarian Law?
By Dialogo April 01, 2012
Colombian Air Force Colonel Juan Carlos Gómez Ramírez
The task is foreboding. Succeeding administrations in Colombia have struggled to
define the legal framework governing the internal conflict that has devastated the country.
This set of issues has led many prosecutors, judges and attorneys to investigate and
challenge the state and its officials from a human rights perspective in their actions
against illegally armed groups. A more appropriate legal framework to support those that
defend the homeland against enemies and criminals is international humanitarian law (IHL).
Legal representatives unfamiliar with legal provisions that regulate conflicts
assume innocuous defenses on behalf of the state, military personnel and police officers on
the basis of the extreme notions of human rights. That is not how the matter is handled
within a legal framework designed for conflict situations, such as IHL. From a human rights
perspective, the only possible action by the Armed Forces and the police is preventive and
defensive. As a consequence, offensive operations can never be considered since they are
designed to neutralize and surprise the enemy, and they differ from the law of armed
conflict. In a human rights framework, there are no combatants, no military objectives and
no military advantage. The term “enemy” does not exist; there may be criminals or even
terrorists, but there is no justification for combat, killing or wounding. The only
possibility is to arrest criminals red-handed or by way of a court order. Weapons are used
only in self-defense, and the principle of proportionality is considered a principle of
means; that is, the response by a member of the Armed Forces or the police to an act of
aggression should be proportional to that act.
In IHL, proportionality is a results principle. That is, independent of the (legal)
means employed, the results of the attack and the damage and injury caused must be justified
on the basis of the principle of military need. So, proportionality in IHL requires that the
harm done to people and property by an attack be proportional to the military advantage
obtained. Collateral damage in any armed confrontation should be minimized. War in itself
implies damage and injury, and in view of the necessity for states to respond to an act of
aggression, they are asked to see to it that the harm they cause does not exceed the demands
of the mission to achieve the war’s end, which is peace.
In the human rights area as in IHL, Colombia has international commitments, both to
the United Nations and the Organization of American States. The agreements and protocols
signed and ratified by Colombia are numerous and are in place to impose obligations on us
and legitimize us as a state that respects these issues on the international level.
IHL in Colombia
The complexity of the Colombian situation, the barbarity of the illegal armed
groups and the creativity of both common criminals and transnational organized crime,
together with the abundance of their resources derived from the business of drug
trafficking, require the Colombian state to make use of all means available to confront
aggression and defend the community. This fact has pushed the National Police in the
direction of carrying out atypical operations such as the spraying and eradication of
illicit crops in rural areas, as well as the defense of the population through groups of
paramilitary police, regular auxiliaries and other specialized groups.
The Armed Forces are also responsible for patrolling the cities and confronting
armed and criminal groups. In addition, they protect and guarantee elections, suppress
violent demonstrations, fight drug trafficking, provide security for prominent individuals,
and protect streets, oil pipelines and electricity infrastructure. The ambiguity of which
law applies to the Armed Forces and police actions when situations occur is in no way to
their advantage. There are currently thousands of Soldiers and police officers who have been
subjected to criticism and legal liability as a consequence of legal inconsistency with
regard to their framework of action.
The Benefits of Adopting IHL
The lawyers who defend the state and those who exercise its authority have an
obligation to adopt IHL. The state’s defense team should appreciate the possibility of
claiming that an action was taken under the scope of IHL. The only viable solution is for
the lawyers responsible for defending our fatherland’s interests to make use of arguments to
justify the actions of state officials in conformity with IHL. That is, injury to persons
and harm to property are an undeniable reality in conflict, and the Armed Forces and police
should obey the imperious necessity that comes with the use of arms to attack and defeat an
armed aggressor. The state should take administrative responsibility for the harm caused,
but this should not mean that the agents who defend the state have to be responsible for
such harm in either a criminal or a disciplinary context, unless their behavior suggests
malicious intent or criminal recklessness, which would be a war crime.
Military personnel and police officers neither have reason to – nor are capable of
– taking on all the responsibilities and liabilities entailed in confronting a reality as
tangled as the Colombian conflict. Since the Armed Forces and the police have a monopoly on
weapons, they are responsible for defending the inhabitants of the national territory and
their property. But, the conflict is a matter concerning all Colombians, and escaping the
whirlwind of violence depends on everyone.
State officials, as well as members of civil society, cannot be neutral. They
should, indeed, support the existing institutions, report crimes and contribute to the
defeat of the illegal armed groups. Neither neutrality nor indifference is an option in a
country that, like Colombia, is facing an internal conflict of this magnitude. Getting
beyond it is the responsibility of, and requires the commitment of, all Colombians. If the
Armed Forces and the police cannot rely on the moral and material support of their people,
another five decades may pass before we see the country at peace.
Colonel Juan Carlos Gómez Ramírez, a lawyer specializing in administrative law, has
a master’s degree in national security and civil-military relations.