Derecho internacional, acuerdo humanitario y resolución pacífica del secuestro

Resumen

Tesis doctoral con mención europea - idiomas: castellano e inglés. The object of the PHD thesis is the problem of kidnapping, based on the case model of Colombia. Kidnapping, hijacking or taking of hostages, depending on the circumstances and how it is legally called, is a crime, under domestic penal legislation, and a violation of international law (International Human Rights and International Humanitarian Law). Although kidnapping is one of the worst violations of human rights; penal law and punishment are not the solution. Due to the fact that it is continuously committed, criticism and legal condemnation don't bring back the victim to freedom. The governmental authorities are in a big dilemma: either negotiation with criminals or the use of force. In theory, the correspondent decision requires taking into account the degree of the risk to the life of the victim, in case of a military mission and the duty to act before criminality. Colombia has the worst records of kidnapping in the world. The number of people who have been abducted and the duration of the captivity are very long. In addition, this problem does have a strong relation with the internal armed conflict; however, other different illegal armed groups have been also involved in such crime: paramilitaries, common delinquency, mafia and even corrupted members of the official security forces. In the political kidnapping, the dilemma between negotiation and the use of force is stronger than in kidnapping for financial purposes. The chances of freedom are lesser than in the others. The families of the victim don't have any chance to act in order to pursue the liberation. Therefore, their situation is more dramatic. In Colombia, FARC developed a strategy to retain soldiers and policemen in order to press for the realization of an exchange of prisoners of war. Then, they also abducted politicians, such as the famous Ingrid Betancourt, as many other political figures. The campaign for their freedom through a negotiated solution is called the humanitarian agreement. More than 60 people (politicians and militaries) were captured by FARC for the purpose of the humanitarian agreement. Their freedom depended on the fate of the internal armed conflict and the will to negotiate between the parties to the conflict. 21 were massacred, 3 died under captivity, 3 escaped, 15 were liberated with the famous 'Operación Jaque', and 13 were unilaterally liberated by FARC. In the jungle, still remain 21 members of the Colombian Armed forces in the power of FARC, some of them with more than 12 years of captivity. Following the method proposed by Johan Galtung (transcend method), the research of this thesis deals with the problem of kidnapping under three different approaches: the diagnosis, the prognosis and the therapy. Under the diagnosis, kidnapping in Colombia is analyzed as a factual reality. It has a research about the statistics, the history of abductions, the involvement of the different actors, the position towards its solution sustained by different governments, particularly, the government of Uribe. In addition, this first part aims to discover how the reality of the captivity is, how are the conditions that the hostages have to live in the jungle, who is a guerrillero and what is the level of risk that military missions put into the life of the hostages. Under the prognosis perspective, the thesis has an overview of national and international antecedents of negotiations upon liberation of hostages and military rescue missions. The idea is to have a global vision, although superficial, to the results of those two different alternatives for the solution of kidnapping. The third perspective, in the words of Galtung, is the therapy of kidnapping' and, as it is also proposed by this author, it requires a combination of 'theory' and peace 'values'. In this case, theory is based on International and National Law, and peace values means the development of the concept of the right to peace and the peace research theory. Chapter IV, V, VI and VII belong to this third part. Chapter IV is about International Humanitarian Law applicable to internal armed conflict: Common Article 3 to the Geneva Conventions, Additional Protocol II, International Customary Humanitarian Law and its main principles. Chapter V is about International Human Rights Law and it has a research on the right to life regarding a non international armed conflict and the current call for a complementary application of International Humanitarian Law and Human Rights. Chapter VI deals with International Human Rights and Humanitarian Law in the context of the Colombian internal armed conflict, an analysis of the applicable jurisprudence, the domestic legislation on kidnapping, the position of the main international humanitarian organizations with presence in Colombia and a legal evaluation of the Operación Jaque. Chapter VII particularly combines facts and theory in dealing with the concept of the right to peace. It analyses the right to peace, under international law and under the Colombian Constitution, and the correspondent jurisprudence of the Constitutional Court. In addition, this chapter includes a presentation of the work done by the Colombian civil society towards liberation of hostages and, especially, the initiative of the group Colombians for Peace that have sustained communication with FARC obtaining positive results with the unilateral liberation of hostages. The research has the following hypothesis that aims to demonstrate through the analysis and conclusions of the different chapters. 1) Kidnapping in Colombia is one of the worst manifestation of the degradations and dehumanization of the armed conflict. Figures on the number of kidnapped people, the conditions of captivity, the indolence of kidnappers, the indefinite prolongation of the captivity, some cases with more than 12 years, and the common indifference by the Colombian government and the society prove this reality. 2) In the national and international level, there are many cases of negotiation and military rescue missions of kidnapped people. The cases where the resolution of kidnapping, trough dialogue and negotiation, are the ones that better guaranteed the right to life and personal integrity of the hostages. 3) The Government and the civil society have been indifferent with FARC hostages and retained people. A change in the position is required. 4) The humanitarian agreement is based on International Humanitarian Law, the International Law of Human Rights and the theory of Peace research. 5) The humanitarian agreement that is proposed, based on Common Article 3 to the Geneva Conventions of 1949, consists on the application of the norms that deal with combatant status, with the aim to promote respecting the principle of distinction, the humanization of the Colombian armed conflict and the liberation of hostages. Although the research is focused on the problem of kidnapping, considering that the analysis of the reality of the life under captivity and guerrilla environment the conclusions are broader than originally expected. On of the parallel conclusion that deserves to be pointed out is that not only hostages have no right to freedom; also, an average guerrillero does not have that right. Furthermore, many of them are children who forcibly joint the guerrillas due to the lack of opportunities and because FARC are the only option they have in order to get the basic food and cloths. As the hostages, a guerrillero cannot freely leave the guerrilla, if he is caught intending to escape, he will be killed. The desertion is condemned by FARC commanders with capital punishment. International Humanitarian Law does have deep gaps regarding non international armed conflicts, such us the definition of what a combatant is. Even though that the principle of distinction is considered a norm of consuetudinary humanitarian law applicable to international and non international armed conflicts, its basis, which is the practical distinction between civilian and combatant still is grey in the cases of internal conflicts. The ICRC while recognizing such gap tried to clarify the concept of direct participation on hostilities', which is the exception of the right to protection against the attacks that the civilians have in case they participate in the hostilities-. The ICRC defined that civilians are those who don't belong to the official armed forces to a party to the conflict and also those who, even being members of the non state party to the conflict-, don't have what is called 'continuous combat function'. For the ICRC's opinion, membership of an armed group does not mean being a combatant, the decisive criteria is the 'continuous combat function'. This position, that is not compulsory, is different that the one that once the Inter-American Commission on Human Rights got when it applied International Humanitarian Law in a short armed conflict in Argentina (La Tablada case). For the Commission, the members of the MTP group were civilians who lost their right to protection because of the direct participation in hostilities. Another position regarding the qualification of the members of an illegal armed group is the one expressed by the Supreme Court of Israel in its revision of the targeted killing policy. The Court found that the conflict with Palestinian terrorists groups is an international conflict and that those groups don't have combatant status. The Court rejected the Israeli government position of the existence of the concept of 'illegal combatant' and concluded that the members of those groups are civilians who lose the right to protection against attacks, in case of direct participation in hostilities. The varied panorama of definitions of what a combatant is, either a civilian or not, vis- à-vis the Colombian scandal of systematic violation of human rights committed by member of the armed forces what is called the false positives- by which civilians were killed and artificially presented as guerrilleros in order to get benefits and merits, lead to a conclusion that a clearer definition is required. It seems that Colombia has a general understanding that the fundamental right to life has a factual and broader exception when it is related with guerrilla. The analysis done by Nils Melzer about the legality of the targeted killing that is presented in the thesis and its conclusions can be transferred into the Colombian armed conflict. The above analysis plus what is related with the concept of the right to life, under international law and the Colombian Constitution, enrich the proposal for the humanitarian agreement which aims to solve the problem of kidnapping but also, to obtain a humanization of the internal armed conflict. The proposal for a humanitarian agreement is based on Common Article 3 to the Geneva Conventions of 1949 and consists on the negotiation on the application of the norms that belong to international armed conflicts about combatancy. While this agreement would bring an end to the captivity of those people in the hands of FARC it would also mean recognition of the applicability of International Humanitarian Law, therefore, a regularization of the conflict. The humanitarian agreement proposal is based on International Humanitarian Law, Human Rights Law and, specially, it is coherent with the concept of the right to peace -which is established in the Charter of the United Nations and the Colombian Constitution, as a right and as a compulsory duty-. In accordance with the Constitutional Court, peace is the foundation of the Colombian State that must guide public authorities and civilians, who have it as individual right. Furthermore, it is important to point out that for the Court, the regulations of the UN Charter that forbid the use of force and the obligation to seek for peaceful resolution of conflicts are also internally applicable and compulsory.