N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.

 Case prepared by Silvia Scozia, LL.M. student at the Geneva Academy of International Humanitarian Law, under the supervision of Professor Marco Sassòli and Ms Yvette Issar, research assistant, both at the University of Geneva.

• Special Missing Persons Unit responsible for searching for people reported missing in connection with or as a result of the conflict: the purpose of this high-level humanitarian, non-judicial unit is to direct, coordinate and contribute to the humanitarian work of tracing all the people who went missing during the conflict and are still alive and of locating and identifying the remains of those who have died and ensuring their dignified return to their families, wherever possible. The work of this Unit shall in no way replace or hinder the performance of judicial investigations by the State in fulfilment of its obligations.

• Special Jurisdiction for Peace: it shall comprise a number of judicial bodies, including the Amnesty and Pardons Chamber, and the Peace Tribunal. Its purpose is to administer justice and investigate, clarify, prosecute and punish serious human rights violations and serious violations of international humanitarian law. […]

• practices and acts occurring during the conflict that constitute serious human rights violations and serious violations of international humanitarian law, in particular those revealing a consistent pattern or committed on a large scale, and the complex circumstances and territorial dynamics of the contexts in which they were perpetrated

• the collective responsibility of the State, including the Government and other public bodies, the FARC-EP, paramilitary forces and any other national or international group, organization or institution involved in the conflict in any way for the practices and acts referred to in the preceding paragraph.

• gather all the information required to establish the full list of people missing in connection with or as a result of the armed conflict.
• strengthen fast-track processes for identifying remains […].
• coordinate and further processes to search for, locate and identify remains and ensure their dignified return to their families, which will involve:
  • actively seeking, corroborating and analysing all the information available from different sources, including voluntary, confidential interviews with people who participated directly or indirectly in the hostilities and may have information on the fate of those who went missing during the conflict and on the possible location of graves, cemeteries and sites containing the remains of missing people.

• ensure, wherever possible, that the remains of people who went missing in connection with or as a result of the armed conflict are returned to their families in a dignified manner, always respecting their ethnic and cultural traditions.
• ensure that the families of people who went missing in connection with or as a result of the armed conflict are involved in the processes undertaken to search for, locate and identify remains and arrange for their dignified return.
• provide families with an official report detailing the information that has been obtained on the fate of the missing person once the corresponding search procedures have been completed; remains that are unidentified or unclaimed by their families shall be preserved and remain available to the relevant authorities in order to guarantee the victims’ rights.

• publish regular reports, at least once every six months, on the activities undertaken to search for, locate and identify remains and arrange for their dignified return, ensuring full respect for the victims’ right to privacy at all times.
• plan, coordinate and direct the implementation of a national and regional tracing, search and identification plans, in cooperation with other relevant bodies and with the involvement of victims’ organisations and human rights organisations.
• create and operate a national register of unidentified graves, illegal cemeteries and burial sites.
• in order to perform its functions, the Special Missing Persons Unit shall adopt procedures to cross-check the information gathered, verify its quality and reliability and identify false information.

III. Amnesties

5. (Document A, paras 27 – 37; Document B, paras 56 – 61) What is theSpecial Jurisdiction for Peace, established by the Agreement? What are its objectives? Over which crimes does it have jurisdiction?

6. (Document A, para. 29; Document B, para. 57) How are the “crimes committed as a result of, in the course of or directly or indirectly in connection with the armed conflict” defined in Document A, para. 29? Would you suggest that this is an adequate definition of the nexus required for IHL to apply to conduct in an armed conflict?

7. (Document A, paras 37, 41 – 42; Document B, paras 52 – 54, 58, 62) Who can benefit from the amnesty provided by the Law 1820/16? What are the effects of the amnesty? Which crimes are amnestiable under the Amnesty Law? Which crimes are excluded? Do you agree with the definition of war crimes provided by the Law in Document B, para. 58 as “any violation of international humanitarian law committed in a systematic manner”? Why? Why not? May war crimes be covered by such an amnesty if they were not committed systematically? Is this compatible with the customary obligations of States regarding war crimes? Does the Amnesty Law relieve the State of Colombia from its obligations to investigate and prosecute war crimes if they were not committed systematically? (P II, Art. 6(5); CIHL, Rules 158 and 159)

8. (Document A, paras 18, 49, 53, 57 – 58) How does the Agreement regulate the identification of members of the FARC-EP? How is the identification linked with the grant of the amnesty? Is there any procedural guarantee secured to the members of the FARC-EP deprived of their liberty as a consequence of the delivery of the lists to the governmental authorities?

9. (Document A, paras 38 – 40; Document B, para. 60)

a.  How does IHL address the responsibility of commanders and other superiors for war crimes committed by their subordinates?b.What rules does the Agreement provide to govern the criminal prosecution of agents of the Colombian State? Is the different treatment for members of State armed forces and for members of armed opposition groups justified? For what kind of conduct listed in Document A, paras 34 and 35 would State agents need and deserve an amnesty? Or at least the special treatment foreseen in Document B, para. 53?c. What criterion does the Agreement establish to determine the command responsibility of members of the armed forces for crimes committed by their subordinates? Is the same criterion valid for leaders of the FARC-EP? Is the difference justified? Is it foreseen in IHL? Is it compatible with IHL? How does the agreement define “effective control” in Document A, para. 40? (P I, Art. 86 and 87; CIHL, Rule 153)