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Atai

There is an issue directed towards President Iván Duque, ex-minister Guillermo Botero, and the Colombian Armed Forces, who, in the name of gaining a military advantage were capable of giving the order to sacrifice children who had already been previously victimized. | Mauricio Dueñas, EFE

An interpretation of the spirit of IHL, manifested in the principles of military necessity and humanity, as well as the IHRL standards applicable to children, should always prohibit the State from causing excessive death or injury. There is nothing more excessive than killing recruited children —vulnerable, discriminated against, and abandoned by the State— in order to gain a military advantage that could have been achieved through other means.

An interpretation of the spirit of IHL, manifested in the principles of military necessity and humanity, as well as the IHRL standards applicable to children, should always prohibit the State from causing excessive death or injury. There is nothing more excessive than killing recruited children —vulnerable, discriminated against, and abandoned by the State— in order to gain a military advantage that could have been achieved through other means.

On 29 August 2019, at around midnight, the Colombian Air Force bombed a camp in the jungles of Caquetá. The objective: alias Gildardo Cucho, leader of the group E-7 and part of the forces commanded by Gentil Duarte. The following day, President Iván Duque announced that Gildardo Cucho and another eight members of his group were eliminated. In his speech, the president explained that this was the result of a “strategic, meticulous, and impeccable effort, with full rigor….” However, he left out one grisly detail: in the bombing, at least eight children were assassinated.

This information was withheld from the public for forty-eight days, until it was revealed in a complaint filed against the Minister of Defense. However, the Commander of the Armed Forces, Luis Fernando Navarro, and the Minister of Defense affirmed at a press conference that the authorities “did not know about the presence of minors” in the camp. After requesting specific information regarding the circumstances preceding and following the bombing, and the initial refusal of the Armed Forces to hand over the information, the Administrative Tribunal of Cundinamarca, ordered the release of sections of the intelligence reports that were related to the presence of children in the camp. The Tribunal applied Article 21 of Law 1712 of 2014, which excludes all exceptions to public access of information in cases of human rights violations. On 18 August 2020, Cuestión Pública and Dejusticia released those sections of the intelligence reports used for the operation, which had been issued on the day of the bombing and four days before the bombing, respectively. The documents clearly state that alias Gildardo Cucho and his group had been recruiting children in the region and that these children were deployed as part of the leader’s personal security. After the government’s lie was exposed, General Luis Fernando Navarro explained that the bombing was carried out in full compliance with International Humanitarian Law (IHL); however, others criticized such claims, arguing that the operation violated IHL.

In this text, we explain our understanding of the legality of the bombing, according to IHL. We conclude that the attack was illegal because it violated IHL, and as a result, those responsible should be investigated, prosecuted, and punished. Operation Atai failed to respect the IHL principles of military necessity and humanity. Our condemnation is especially directed to those who ordered the attack, having possessed previous and clear knowledge about the presence of children in the camp who had been victims of child recruitment.

This subject is sensitive and controversial, especially with regard to the manner in which IHL regulates the conduct of hostilities involving recruited children. As will be explained below, there is a gap in IHL regarding special protection for recruited children who are forced to take part in the hostilities. Nonetheless, our interpretation of the governing IHL rules leads to the conclusion that the bombing violated IHL.

 

What is IHL, and Why is it Relevant for Analyzing the Legality of Operation Atai?

According to the International Committee of the Red Cross (ICRC), IHL is a body of international norms that regulate the conduct of hostilities in armed conflicts, both international and non-international. Meanwhile, International Human Rights Law (IHRL) is a body of norms, which enable persons to claim certain rights from the State, including the rights to life, personal integrity, and judicial guarantees.


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Without an adequate interpretive exercise, it is possible to find tensions between IHL and IHRL. For example, while IHRL establishes that every person has the right to life, IHL permits the parties to an armed conflict to attack and kill each other’s members, as long as IHL rules are complied with. The majority of experts and States reconcile these supposed contradictions under the notion of lex specialis, which holds that, where there is a tension between legal frameworks, the more specific framework, in this case IHL, would apply. However, even in times of armed conflict, IHRL does not cease to apply. All persons continue to have human rights, regardless if they are taking part in the hostilities or not; however, violations of human rights must be harmonized with the more specialized law, IHL. Therefore, while in times of peace, IHRL applies, in times of armed conflict, both IHL and IHRL apply.

Now, the question is whether the bombing took place in the context of an armed conflict, and as such, IHL applied in all of the national territory. A non-international armed conflict exists when hostilities occur between a State’s armed forces and an organized armed group or between two or more organized armed groups. Moreover, the hostilities must reach a minimum threshold of intensity and the organized armed group must exhibit a sufficient level of organization. According to the ICRC and the Geneva Academy’s RULAC, there are currently five non-international armed conflicts taking place in Colombia. One of these armed conflicts is between the State and the Eastern Bloc, a dissident group of the already demobilized FARC-EP.

According to the information presented in the media and the intelligence reports, Gildardo Cucho commanded the residual group E-7 and was under the command of alias Gentil Duarte, the leader of the dissident FARC-EP group, the Eastern Bloc. As such, Gildardo Cucho and those he commanded were engaged in a non-international armed conflict with the State, and the frameworks of IHL and IHRL applied to the bombing.

 

What Happens if One of the Parties to a Conflict Recruits Children into its Armed Forces?

Under international law, the recruitment of children is prohibited, regardless of whether the recruitment was forced or voluntary. This is because, under international law, a child cannot give consent to join armed forces or armed groups. However, although the prohibition is clear, there is not yet a consensus regarding the age of recruitment related to this prohibition. While some experts and international treaties, such as the Optional Protocol to the Convention on the Rights of the Child, hold that the age should be eighteen, others, including Rule 136 of the ICRC’s customary IHL database set the age at fifteen. Colombia has ratified the Optional Protocol, and additionally, the Penal Code criminalizes illicit recruitment of children under eighteen years. For this reason, the standard in Colombia is clear: it is prohibited to recruit children under eighteen years.

Therefore, the children who were present in Gildardo Cucho’s camp were victims of a grave human rights violation, and their recruitment was also an infraction of IHL, which can also be considered a war crime in certain circumstances. For this reason, those responsible should be investigated, prosecuted, and punished. In addition, the State should adopt all measures necessary for preventing child recruitment and for rescuing recruited children.

On the other hand, the determination of whether someone is a combatant does not depend on their age or their willingness to be a part of the armed group. If a person is determined to be a combatant, then according to the principle of distinction, that person may be attacked by the other party; on the contrary, if a person is not determined to be a combatant, they are a civilian and may not be attacked. To determine if a person is a member of an organized armed group, such as the Eastern Bloc, and is therefore a combatant, the determinative question to be asked is whether the person assumes a continuous combat function (CCF) for the group. According to the ICRC, a CCF is the equivalent to a continued direct participation in the hostilities (a commander’s bodyguards assume a CCF). In the case of Operation Atai, is was clear that children were forced to participate as the leader’s personal security unit, and as such, were part of the armed group. Also, it is important to clarify that the children were not hors de combat (i.e. no longer participating in the hostilities), because IHL does not consider sleeping combatants to fall into this category. Instead, hors de combat applies to persons in the power of an adverse party, persons defenseless because of unconsciousness (sleeping is not included), shipwreck, wounds or sickness, and persons who have clearly expressed an intention to surrender.

 

Being Victims of Recruitment, Can Children who are Members of Armed Groups be Attacked?

In principle, yes, as long as the attacking party respects, in addition to the principle of distinction, IHL’s other principles: (i) proportionality, (ii) precautions, (iii) military necessity, and (iv) humanity.

According to the principle of proportionality, “[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” Similarly, the principle of precautions establishes that “constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.” Since there were no civilians reported in the camp which was bombed, it is unnecessary to analyze the principles of proportionality and precautions, as these are focused on protecting civilians.

According to the principle of military necessity, only those military actions necessary to achieve a legitimate military purpose, and that are not expressly prohibited by IHL, are permitted. Additionally, under IHL, the only legitimate military purpose is weakening the military capacity of the other party. As such, the prohibition on employing means and methods of warfare that cause superfluous injury or unnecessary suffering is derived from the principle of military necessity. On the other hand, the principle of humanity, establishes that both civilians and combatants are protected by the principles of international law, the laws of humanity, and the dictates of the public conscience. As a result, not everything that is not prohibited by IHL is necessarily permitted in armed conflicts.

At its heart, the purpose of IHL is to find a balance between military necessity and humanity. In this sense, the Interpretive Guidance on the Notion of Direct Participation in Hostilities can be useful in this balancing exercise, although some critics do not agree with the interpretive guidance’s understanding of IHL. According to the Guidance, the type and degree of force employed against combatants cannot be excessive in relation to what is actually necessary to achieve a legitimate military objective. This understanding comes from the principles of military necessity and humanity, which, according to the Guidance, prohibit causing more deaths or injuries than are actually necessary. From the available information, it is clear that these principles were violated in the bombing.

The military objective of Colombia’s Armed Forces was to kill Gildardo Cucho. While the children were considered to be combatants in the case at hand, killing them was not the purpose, nor did their deaths provide any additional military advantage to the State. A reasonable analysis regarding the election of the means of warfare to be used (bombing) should have determined the excessiveness in killing recruited children when other means could have been employed.

IHL permits parties to a conflict to attack any member of the other party in order to avoid perverse incentives, such as using children in order to be shielded from attack. In this case, the presence of children would have prevented the Armed Forces from bombing the camp, but other military operations, which would have achieved the same military advantage with much less damage, could have been employed. Especially in the context in which the bombing occurred —after a meticulously planned and coordinated operation relying on abundant information and time —the Armed Forces had time to analyze the situation and make appropriate decisions. In this regard, the State violated the principles of humanity and military necessity: the bombing caused more deaths than were actually necessary to achieve a legitimate military objective.

 

Conclusion

In addition to our analysis of the bombing, it should be emphasized that any person who recruits children to participate as part of an armed group in an armed conflict violates IHL, IHRL, and commits a war crime. Flowing from this prohibition, the State is obligated to: (i) use every means constitutionally permissible to end child recruitment, (ii) protect children who are victims of child recruitment, and (iii) investigate, prosecute, and punish those responsible for child recruitment.

Although in principle, children who form part of an armed group, by virtue of their continuous combat function, can be attacked by the other party, this is not a blank check for the armed forces to employ any method they desire. An interpretation of the spirit of IHL, manifested in the principles of military necessity and humanity, as well as the IHRL standards applicable to children, should always prohibit the State from causing excessive death or injury. There is nothing more excessive than killing recruited children —vulnerable, discriminated against, and abandoned by the State— in order to gain a military advantage that could have been achieved through other means. Additionally, the case of Operation Atai raises four serious issues.

The first is directed to States, the international community, and other actors who participate in the creation and development of IHL. As we have explained in this blog, and following the arguments of authors like René Provost, in its regulation of armed conflicts, IHL has provisions prohibiting child recruitment and protecting child combatants after they are captured by an adverse party. However, IHL lacks any clear provisions related to the treatment of child combatants participating in the hostilities. This lacuna in IHL has generated a protection deficit and an uncertainty, which has led armed forces to believe they are free to attack at any time or location, even when there are child combatants present. Our interpretation of the principles of humanity and military necessity demonstrates that this is a faulty understanding. However, the problem would be better dealt with if States agreed upon clear and express provisions related to the protection of recruited children, that would also not create perverse incentives.

The second is directed towards the Colombian State, which should be a leader in the international community regarding the protection of children in armed conflicts and IHL, rather than legitimizing illegal military operations or lying to Colombian society. Since IHL is derived from two sources, international treaties and custom, Colombia should be an example of how military practices can protect children who have been repeatedly victimized and forced to participate in the hostilities. This would help to push the debate regarding the development of norms related to the conduct of hostilities and, if sufficiently impactful, could help change other States’ behaviors and create new customary law.

The third is directed towards President Iván Duque, ex-minister Guillermo Botero, and the Colombian Armed Forces, who, in the name of gaining a military advantage were capable of giving the order to sacrifice children who had already been previously victimized. These decisions are not only illegal under IHL, as we have already argued, but they also raise serious concerns about the priorities of those who are supposed to protect the lives, honor, and welfare of every person in Colombia. It is important to remember that children should be protected by the State and society, and that their rights are expressly and specially protected by the Constitution.

Finally, the fourth is directed towards organized armed groups. We say this last, not because it is any less important, but because we want to emphasize it. Children must not be recruited, children must not participate in the hostilities, and children must not be put at risk by a conflict in which they have no part of. Recruiting children is a war crime.

Of interest: Children / Colombia / Iván Duque / Military

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