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Published online by Cambridge University Press: 06 June 2014
One of the fundamental rules for the protection of health-care personnel in any circumstance, including contexts of armed conflicts, provides for a prohibition on punishing medical professionals who merely act in accordance with medical ethics. However, although the reasons for this prohibition may seem obvious, in contexts of non-international armed conflicts the provision of medical care to wounded and sick members of non-state armed groups can expose medical personnel to accusations of participation in criminal activities. Based on the Colombian domestic legislation and jurisprudence on the matter, this article aims to propose elements of analysis on the apparent contradiction that exists between, on the one hand, the prohibition against punishing medical personnel for merely providing health care to the wounded and sick who need it, and on the other, the prerogative of the state authorities to restore order and security within their territory through the imposition of criminal sanctions on members of non-state armed groups or their aiders and abettors.
1 Other guerrilla groups that emerged during the 1960s and subsequent decades, and that demobilised after participating in negotiations with the government, are the M-19 (1990), Ejército Popular de Liberación (EPL, 1991), Partido Revolucionario de los Trabajadores (PRT, 1993), and Quintín Lame (1991).
2 One of the most relevant laws is Law 418 of 26 December 1997, by which some instruments for seeking coexistence, effective justice, and other provisions are adopted.
3 Law 975 of 25 July 2005, which dictates provisions for the reincorporation into society of members of illegal armed groups who contribute effectively to the achievement of national peace, and for other humanitarian agreements.
4 Throughout the text, we will use ‘health-care personnel’ and ‘medical personnel’ interchangeably.
5 Second Additional Protocol to the Geneva Conventions of 12 August 1949 (hereinafter AP II), Art. 10. See also ICRC, Customary International Humanitarian Law, Vol. I: Rules, Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Cambridge University Press, Cambridge, 2005 (hereinafter ICRC Customary Law Study), Rule 26 (applicable in international and non-international armed conflicts).
6 Arts. 7-8 of AP II; ICRC Customary Law Study, Rule 110 (applicable in international and non-international armed conflicts).
7 See, for example, Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 27227 of 21 May 2009, p. 13.
8 According to the ICRC's commentary on Art. 3 of AP II, states may ‘take appropriate measures for maintaining or restoring law and order’ only through legitimate means, such as the adoption of legislation; hence, ‘imperative needs of State security may not be invoked to justify breaches of the rules of the Protocol’. See Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar (hereinafter ICRC Commentary), paras. 4500-4501.
9 The present article will focus only on the definition and application of the crime of rebellion, which is considered a political crime, although members of non-state armed groups may also be condemned for the crimes of terrorism, complicity, extortion, kidnapping, drug trafficking, etc.
10 ICRC Commentary, para. 4679.
11 Ibid., para. 4687.
12 Ibid., para. 4686.
13 ICRC, Health Care in Danger: Making the Case, August 2011, p. 14, available at: www.icrc.org/eng/assets/files/publications/icrc-002-4072.pdf (all internet references were last accessed in February 2014).
14 ICRC Commentary, para. 4691.
15 GA Res. 44/165, 15 November 1989.
16 Council of Europe, Parliamentary Assembly, Resolution 904 of 30 June 1988, Appendix, para. 1; Regulations of the World Medical Association in Times of Armed Conflict, adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, Regulation B(3) (edited by the 11th World Medical Assembly, Istanbul, Turkey, October 1957, and amended by the 35th World Medical Assembly, Venice, Italy, October 1983), available at: www1.umn.edu/humanrts/instree/armedconflict.html.
17 Art. 10(3) of AP II states: ‘The professional obligations of persons engaged in medical activities regarding information which they may acquire concerning the wounded and sick under their care shall, subject to national law, be respected.’ Art. 10(4) states: ‘Subject to national law, no person engaged in medical activities may be penalised in any way for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care.’
18 Hernán Reyes MD, Medical Neutrality – Confidentiality Subject to National Law: Should Doctors Always Comply?, November 1996, available at: www.medekspert.az/en/chapter13/resources/med_confid_subject_law-2.pdf.
19 ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949, 1972 Report, Vol. I, para. 2.376, Geneva, October 1973, p. 148Google Scholar, available at: www.loc.gov/rr/frd/Military_Law/pdf/RC-Draft-additional-protocols.pdf.
20 ICRC Commentary, para. 4700.
21 Ibid., para. 4684.
22 Ibid., para. 4700.
23 Ibid., para. 4697.
24 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (hereinafter AP I), Art. 16(3) (emphasis added).
25 ICRC Commentary, para. 676.
26 Inter-American Court of Human Rights, De La Cruz Flores v. Peru, Judgment, 18 November 2004, para. 102, available at: www.corteidh.or.cr/docs/casos/articulos/seriec_115_ing.pdf.
27 Ibid.
28 See Constitutional Court of Colombia, Sentence C-067 of 4 February 2003, para. 3(B). In this decision the Constitutional Court established that the international norms integrated into domestic law by virtue of the constitutional block are ‘real principles and rules with a constitutional value’. The Court added that these international treaties benefit from a ‘general and permanent prevalence over the internal legislation’ (our translations).
29 Constitutional Court of Colombia, Sentence C-225 of 18 May 1995, para. 32 (our translation, emphasis added).
30 Decree 138 of 1 January 2005 regulating Arts 5, 6, 14 and 18 of Law 875 of 2 January 2004 and other provisions, Art. 16 (our translation).
31 ICRC Commentary, para. 4876.
32 Political Constitution of Colombia of 1991, Art. 95(2).
33 Colombian Criminal Code, Art. 152.
34 Ibid., Art. 135.
35 Rome Statute of the International Criminal Court, 17 July 1998, entered into force 1 July 2002, UN Doc. A/CONF.183/9, Art. 8(2)(e), (ii).
36 Law 23 of 18 February 1981 establishing rules on medical ethics, Arts. 6 and 7; Decree 3380 of 30 November 1981 regulating Law 23 of 18 February 1981, Art. 4.
37 Law 782 of 23 December 2002, through which extends the application of Law 418 of 17 December 1997, extended and amended by Law 548 of 23 December 1999 and modifying some of its provisions, Art. 19 (our translation).
38 Law 1148 of 10 June 2011, through which measures for the integral attention, assistance, and reparation of the internal armed conflict are dictated, Art. 53.
39 Ibid., Art. 47.
40 Ibid., Art. 54.
41 Constitutional Court of Colombia, Sentence C-411 of 1993, para. 5.2.2.
42 Ibid.
43 Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 14043 of 7 March 2002, para 4.
44 Constitutional Court of Colombia, Sentence C-853 of 2009, para 6.2.
45 Colombian Criminal Code, Art. 441.
46 See Melzer, Nils, Interpretive Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009Google Scholar. For more extensive information on Direct Participation in Hostilities and the civilian's loss of protection against attacks, see in particular p. 33 on the notion of ‘membership in an armed group’.
47 Colombian Criminal Code, Art. 467.
48 Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 7504 of 12 August 1993, cited in Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 33558 of 7 July 2010, p. 25 (our translation, emphasis added).
49 Supreme Court of Justice of Colombia, Criminal Cassation Chamber, case No. 33558 of 7 July 2010, p. 22–24.
50 Colombian Criminal Code, Art. 467.
51 Higher Tribunal of the Northern Judicial District of Santander, Criminal Decision Chamber, Ordinary Condemnatory Sentence, second instance, Case No. 54-498-31-04-002-2007-00111-01, 9 July 2009.
52 Colombian Criminal Code, Art. 340.
53 Ibid., Art. 341.
54 Ibid., Art. 345.
55 Second Criminal Circuit Court of Villavicencio, Case No. 50001310400220090002800 of 28 April 2010 (our translation).
56 Supreme Court of Justice of Colombia, Criminal Cassation Court, Case No. 19915 of 10 June 2005, p. 29 (our translation).
57 Ibid.
58 Supreme Court of Justice of Colombia, Criminal Cassation Court, Case No. 26945 of 11 July 2007, p. 24.
59 Constitutional Court of Colombia, Sentence C-009 of 17 January 1995, para. 3.2.2.
60 Supreme Court of Justice of Colombia, above note 7, p. 3 (our translation).
61 Ibid., p. 12 (our translation).
62 Criminal Circuit Court 49, Case No. 2006-188 of 16 September 2009 (our translation).
63 Supreme Court of Justice of Colombia, above note 7, p. 12 (our translation).
64 Criminal Circuit Court 49, above note 62.
65 ICRC Commentary, para. 4637.
66 AP I, Art. 8(a); ICRC Customary Law Study, Rule 109, p. 399.
67 Second Criminal Circuit Court of Villavicencio, above note 55.
68 Political Constitution of Colombia of 1991, Arts. 25 and 53.
69 Constitutional Court of Colombia, Sentence T-161 of 1998, para 2.
70 ICRC Customary Law Study, Rule 26 (applicable in international and non-international armed conflicts).