Human Rights and Humanitarian Law
in the Context of Plan Colombia

Talk by Peter Weiss
President of The International Association of Lawyers Against Nuclear Arms and 
The Lawyers' Committee on Nuclear Policy

Bogota – June 14, 2001

Let me begin with a piece of history, a quote from a document bearing the insignia of the White House in Washington:

I am well aware of the danger and great difficulty of the task our Army has had in (I will leave the country blank for now) and of the well-nigh intolerable provocations it has received from the cruelty, treachery, and total disregard of the rules and customs of civilized warfare on the part of its foes. I also heartily approve the employment of the sternest measures necessary to put a stop to such atrocities, and to bring this war to a close. … But the very fact that warfare is of such character as to afford infinite provocation for the commission of acts of cruelty by junior officers and the enlisted men, must make the officers in high and responsible positions peculiarly careful in bearing and conduct so as to keep a moral check over any acts of an improper character by their subordinates.

Would anybody care to guess, which American President put these words to paper and under what circumstances? It was Theodore Roosevelt, in 1902, approving the sentence pronounced by a court-martial upon Brigadier General Jacob H. Smith, commanding general of the Sixth Brigade, Division of the Philippines.

General Smith was not accused of having himself committed any war crimes. The charge against him was that, in instructing his subordinate officer, a certain Major Waller of the United States Marine Corps, to put down the insurrection in  Samar, one of the Philippine islands, he used the following language: “I want no prisoners. I wish you to kill and burn. The more you kill and burn, the better you will please me. The interior of Samar must be made a howling wilderness.”

No reference was made in this court-martial, which was one of several arising out of the Aguinaldo insurrection, to the Convention Respecting the Laws and Customs of War on Land,  adopted only  three years before at the first International Peace Conference at The Hague. Nevertheless, the principles on which General Smith and other U.S. army officers were convicted are precisely those which underlie the Hague Convention, which remains to this day, and will continue to remain, the Magna Carta of humanitarian law.

          Let us review them briefly:

1.     The laws of war apply not only to armies, but also to militia and volunteer corps.

2.     Both combatants and non-combatants belonging to the armed forces of belligerents are   entitled, in case of capture, to be treated as prisoners of war.

3.     Prisoners of war must be treated humanely.

4.     The right of belligerents to injure the enemy is not unlimited.

5.     Edifices devoted to religion, art, science and the care of the sick and wounded are to be spared, provided they are not used for military purposes.

6.     The pillage of a town or place, even when taken by assault, is prohibited.

These are only six of the 60 rules contained in the Regulations annexed to the Hague Convention, but they seem to me those most relevant to the situation prevailing in Colombia today.

The Hague Convention, ratified by Colombia  in 1907, is applicable only to conflicts between states party to the Convention and not to internal conflicts. However, as shown by the Philippine cases to which I have referred, the humanitarian principles embodied in the Convention transcend the international context. They are contained in the regulations and codes of conduct of most of today’s armed forces, including, I assume, your own. They also have an ancient and multicultural history. Professor Friedman, in  The Laws of War, A Documentary History, (Random House, New York, 1972), states “Virtually every civilization of which we have a record placed some limitations on the conduct of its own warfare.” Some of the examples he gives are:

In ancient China, it was prohibited to wage war during the planting and harvesting seasons and prisoners were to be treated “with  magnanimity and sincerity.”

The Book of Manu, from the fourth century B.C., forbade Hindu soldiers to use concealed, barbed and poisoned weapons and to strike non-combatants.

St. Augustine, in his letter to Faustus the Manichaean, wrote: “The real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power.”

The Church Fathers of the Middle Ages provided various forms of penance for killing in war.

The great Spanish theologians and philosophers of the 15^th and 16^th centuries like Vitoria and Suarez are best known for their examination of ius ad bellum and their theories of just wars, but they also wrote on ius in bello. Thus Vitoria: “The deliberate slaughter of the innocent is never justified.”

Grotius, while sanctioning many of the actions now prohibited by humanitarian law, held rape to be a violation of the law of nations, a view to which modern jurists have only recently arrived.

To return to the current structure of international humanitarian law as it applies to internal conflicts, it is interesting to note that the first detailed code preceding and foreshadowing the Hague Regulations was the Lieber Code formulated by a German-born history professor at Columbia University in 1863 as a guide to the conduct of United States forces in the American civil war. 

Today, the relevance of humanitarian law to internal conflicts is based on the fact that its fundamental principles have become part of customary law and on common Article 3 of the four Geneva Conventions of 1949, ratified by Colombia on 8 November 1961. This Article provides that, in the case of armed conflict not of an international character, the parties to the conflict shall be bound to apply, as a minimum, certain provisions guaranteeing the safety of non-combatants, including

no violence to life and persons,

no taking of hostages,

no outrages upon personal dignity, in particular humiliating and degrading treatment, and

no summary executions.

Common Article 3 also provides that “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.”

Additional Protocol II to the Geneva Conventions of 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, was adopted in Geneva on 8 June 1977. Protocol II, to which Colombia acceded on April 17, 1996,  was intended to flesh out the rather perfunctory language of common article 3 by prohibiting, inter alia, the following acts not previously mentioned:

Violence to the health and physical or mental well-being of persons

Collective punishments

Acts of terrorism

Rape, enforced prostitution and any form of indecent assault, and

Pillage.

Protocol II also contains provisions dealing with:

Protection of objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and irrigation works,

Protection of dams, dykes and electrical generating stations,

The forced displacement of the civilian population.

Of particular significance are two clauses in the Preamble:

Recalling that international instruments relating to human rights offer a basic protection to the human person, and

Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of

humanity and the dictates of the public conscience.

The first of these recognizes the growing convergence between human rights law and humanitarian law  and suggests that many of the atrocities and outrages upon human dignity which characterize internal armed conflict are already outlawed by the vast body of human rights law evolved since the end of World War II, and do not require special codification in humanitarian law instruments. The second is a reference to the famous Martens clause inserted in the Hague Convention by the Russian foreign minister of that name,  and reminds us of the indestructible bond between morality and humanitarian law.

Another branch of law which interfaces with humanitarian law, and particularly so in the Colombian context, is environmental law. No one knows for certain the longterm consequences of the massive fumigation campaign which is at the core of Plan Colombia. But it is difficult to believe that it will not cause severe damage to the environment, as it has already done to the health of the affected populations.

Needless to say, all the parties to the long enduring Colombian conflict have been guilty of grave human rights and humanitarian law violations, though probably not in the same proportions. The February 2001 Country Report on Human Rights Practices in Colombia, by the United States Department of State, lists the following, with abundant examples of each:

Extrajudicial killings

Disappearances

Torture and Other Cruel, Inhuman and Degrading Treatment

Arbitrary Arrest, Detention or Exile

Denial of Fair Public Trial

Arbitrary Interference with Privacy, Family, Home, or Correspondence

Use of Excessive Force and Other Violations of Humanitarian Law, including use of antipersonnel landmines, kidnapping, forced recruitment of persons, including minors, into armed units, systematic attacks on non-combatants and attacks on churches, hospitals and ambulances.

With particular reference to human rights, the report lists violations of: 

Freedom of speech and press, peaceful assembly, freedom of religion, freedom of movement within and in leaving the country, interference with investigations of human rights abuses,  rape, sexual harassment, trafficking in women, child labor, abuse of children; violation of the rights of disabled persons, indigenous people, religious, racial, national and ethnic minorities and workers; forced labor, child labor and trafficking in persons.

Many if not most of these violations are related directly to the armed conflict, others are aggravated by it and some would no doubt occur even in time of peace, as they do in any country, including my own.  It is entirely conceivable, indeed probable, that the United States and certain U.S. citizens, given their increasing involvement with Plan Colombia, already bear and will in the future bear responsibility for certain human rights and humanitarian law violations occurring in Colombia, through acts of commission or omission.

Let me now turn to a question much in the news these days and closely related to our topic, namely, what happens to people who commit serious violations of human rights and humanitarian law?

You all know about the case of General Pinochet, who went to England in October of 1998 to get his back repaired and since then has spent most of his time under house arrest, first in the United Kingdom and now in Chile. His extradition has not only been requested by Spain, which initiated the proceedings against him, but also by Belgium, Switzerland and Argentina.

Pinochet is not alone. There are others who, much to their surprise, find themselves indicted as common criminals far away from home, for something they did long ago which may have seemed justified to them at the time.

Less than a week ago, on June 8, a Belgian jury convicted four Rwandans, including two Catholic nuns of participation in the Rwandan genocide. On the previous day, a Paraguayan judge initiated proceedings for the extradition from Brazil of  Alfredo Stroessner, who is accused of using torture and killing to deal with political opponents during his 35 years as President.

In the recent past cases based on crimes against humanity have been brought in Belgium and Spain against Guatemalan torturers; in Belgium against General Sharon, now the Prime Minister of Israel; in France against General Paul Aussaresses for his admission of torture and extrajudicial killings during the Algerian war and against a captain in the army of Mauritania, Ely Ould Dadh, and in Senegal against Sissene Habre, the former President of Chad.

This is in addition to the International Criminal Tribunals for the former Rwanda and the former Yugoslavia, those in process of formation for Sierra Leone and Cambodia and, of course, the International Criminal Court supported by the vast majority of the world’s countries, but not, unfortunately, my own.

All of this is part of a monumental development in international law and justice. It is called  “universal jurisdiction” and it means simply that certain crimes, like genocide and other crimes against humanity are of such magnitude and run counter to such universally recognized norms that its perpetrators should be brought to justice wherever they are found.

We are of course a long way from making the principle of universal jurisdiction universally accepted. Certain countries, like Belgium and Spain, are leading the way. Others, like the United States, apply the principle in civil cases, but only rarely in criminal ones. But the trend away from impunity is unmistakable, and should  serve as a warning to all who believe that high rank or extreme circumstance can justify beastly behavior by human beings. As an American judge said in a case which I brought some twenty years ago in New York against a Paraguayan torturer: “The torturer has become, like the pirate of old, hostis humanis generis, an enemy of all humanity,”

The other side of the coin of universal jurisdiction is the acceptance of universal norms within the prosecutorial and judicial systems of states. Within the last few days, Carlos Menem became the first former elected President of Argentina to be arrested. In his case, to be sure, the charge was not a crime against humanity, but involvement in arms smuggling. But another very recent first is the conviction by a Guatemalan court of two army officers for the 1998 murder of Bishop Juan Gerardi and their sentence to 30 years in prison.

Nor is it safe to assume that, if and when the long running Colombian conflict finally comes to an end, there will be an effective amnesty for those on all sides of the conflict who have engaged in criminal behavior. On March 14 of this year the Interamerican Court of Human Rights decided, in the Barrio Altos case, that the Peruvian amnesty for military and police officials was invalid as violating several article of the American Convention on Human Rights. In its landmark decision, the court said that not only could there be no amnesty for torture and disappearance, but to use the amnesty law to deprive the relatives of the victims of access to justice was to deny them their derecho a la verdad, their right to the truth.

It is sometimes forgotten that the punishment of wrongdoers is not the only aim of criminal justice. Providing a sense of closure to victims is another, and so is the revelation of truth, without which there can be no reconciliation and therefore no peace.

But even better than having recourse to justice for crimes against humanity is to refrain from and prevent the commission of such crimes, no matter how grave the provocation. I therefore commend to those of you in the armed forces of Colombia, in all humility, the words penned by Theodore Roosevelt a hundred years ago in circumstances very similar to your own: Officers in high and responsible positions must be peculiarly careful in bearing and conduct so as to keep  a moral check over acts of an improper character  by their subordinates. And, I might add, by themselves.