ALONSO GURMENDI DUNKELBERG

MLLWR Menu ban

The Military Law and the Law of War Review
PUBLISHED UNDER THE AUSPICES OF THE INTERNATIONAL SOCIETY FOR MILITARY LAW AND THE LAW OF WAR

MLLWR Menu haut

Home

About Us

Editorial Board

Submissions

Archives

Last issue

Review 2017-2018 - Volume 56

There and Back Again: The Inter-American Human Rights System’s Approach to International Humanitarian Law
ALONSO GURMENDI DUNKELBERG^*
Professor of International Law at Universidad del Pacifico (Lima, Peru)

Table of Contents

Introduction

The Lex Specialis Conundrum
The Inter-American Court’s Approach to International Humanitarian Law

The Early Years
The Cançado Trindade Court
Applying a Lex Protector
An Explanation for Lex Protector
Lex Specialis Redux
The Turning Point

Looking Forward

The Villamizar Case
The Villamizar Case and International Humanitarian Law

Conclusion

1
3
7
8
9
13
14
16
17
21
21
22
24

I. Introduction

Latin America is a region with a rich and proud history in the realm of international law and human rights. It was the first to adopt a multilateral Human Rights Declaration, beating its Universal counterpart by eight months. ¹ It is the first nuclear-weapon-free zone, ² the birth-place of the 200-mile continental shelf, ³ and the home of the Inter-American Human Rights System, one of the most respected and innovative human rights regional protection mechanisms in the world. ⁴

Latin America, however, is also a region fraught with political instability. Guerrillas, civil wars, social conflict, dictatorships, coups and caudillos have been a persistent facet for most of its

^* I wish to thank Professor Carlos J. Zelada for his important comments on earlier drafts of this article. Ms. Andrea Tafur offered valuable assistance during the drafting and editing process. Back
¹ The American Declaration was proclaimed on April 1948, whereas the Universal Declaration was proclaimed on December 1948. See American Declaration of the Rights and Duties of Man, April 1948, OEA Res. XXX (9th Session), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1, 17 (1992). Back
² Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean 1967, 634 UNTS 281. Back
³ Declaration on the Maritime Zone 1952, 1006 UNTS 324. Back
⁴ C. Binder, ‘The Prohibition of Amnesties by the Inter-American Court of Human Rights’, Vol. 12 No. 5 German Law Journal 2011, p. 1203: “[t]he Inter-American Court of Human Rights has proven a particularly active defender of human rights in Latin America” and that “[l]egal scholars have praised the Inter-American Court for its effective protection of human rights”. Back

1
history, ⁵ including to this day. ⁶ This has left the region marred by a sour record of human rights violations and weak democratic institutions.

Given this combination of factors, the Inter-American Commission and the Inter-American Court of Human Rights have both been at the forefront of the progressive development of human rights. ⁷ They have been an invaluable means for the elaboration and development of doctrines related to forced disappearances as a human rights violation, ⁸ the responsibility of the State for the actions of non-state armed groups, ⁹ reparations, ¹⁰ the illegality of military trials, ¹¹ and the unenforceability of blanket amnesty laws. ¹²

Despite this boastful record, however, the progressive development of human rights in situations of armed conflict through international humanitarian law has never been one of its achievements. This is both disappointing and somewhat paradoxical. In today’s world, international humanitarian law and international human rights law share an important level of symbiosis, first addressed by the International Court of Justice in the Nuclear Weapons Case in 1996. ¹³ This would have made the San José Court – traditionally heavily involved with situations of armed conflict – the ideal testing ground for the co-application doctrines coming out of The Hague. As the new millennium dawned, however, and despite some early encouraging case law, it became clear that this would not happen. In fact, it would take 16 years for the Court to actually venture into the realm of co-application in the case of Santo Domingo v. Colombia. ¹⁴ Until then, it effectively yielded its natural role to other, more enthused forums.

In this paper I will explain why this 16-year old gap came to be, seeking also to gain some clarity as to the role that international humanitarian law will play in the Court’s jurisprudence in the coming years. To understand this, I will study the Court’s evolution and early struggles with international humanitarian law, including the role of key individuals and institutions. I find that this process distanced the Inter-American System from humanitarian law, which is a body of law it probably thought it did not need throughout most of the late nineties and early 2000s. I further find that starting in 2012 the Court seems to have had a change of direction with regards to its approach to armed conflict and is slowly but steadily assuming its long overdue role as a major forum for the development of international humanitarian law.

In order to trace the Court’s historical process, I have divided this paper in four sections. Section 1 will set out the current status of the application of human rights in time of armed conflict. Section 2 will go through every stage in the development of the Inter-American’s System’s approach to international humanitarian law, beginning with the pioneering case law of the Inter-

⁵ Countries facing an international or non-international armed conflict since the second half of the 20th century include El Salvador, Guatemala, Honduras, Colombia, Ecuador, Peru, and Argentina, with some even arguing that the Mexican fight against the drug cartels and the Central American struggle against the maras gangs should constitute armed conflicts as well. Back
⁶ At the time of writing, since the year 2000, three democratically elected Presidents have been deposed from power through less than transparent impeachment procedures: Hondura’s José Manuel Zelaya, Paraguay’s Fernando Lugo, and Brazil’s Dilma Rousseff. Also, in December 2017, Peruvian President Pedro Pablo Kuczynski managed to survive a seriously flawed impeachment process as well. Back
⁷ Binder, supra note 4, p. 1203. Back
⁸ IACtHR, Velásquez Rodríguez v. Honduras, Series C 04, 29 July 1988, Judgment (Merits), http://www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf. Back
⁹ Id. Back
¹⁰ T. Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’, Vol. 46 No. 2, Columbia Journal of Transnational Law 2008, p. 351. Back
¹¹ IACtHR, Castillo Petruzzi et al. v. Peru, Series C 52, 30 May 1999, Judgment (Merits, Reparations, and Costs), http://www.corteidh.or.cr/docs/casos/articulos/seriec_52_ing.pdf. Back
¹² IACtHR, Barrios Altos v. Peru, Series C 75, 14 March 2001, Judgment (Merits), http://www.corteidh.or.cr/docs/casos/articulos/seriec_75_ing.pdf. Back
¹³ ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, § 25 (Nuclear Weapons case). Back
¹⁴ IACtHR, Santo Domingo v. Colombia, Series C 259, 30 November 2012, Judgment (Preliminary objections, Merits and Reparations), http://www.corteidh.or.cr/docs/casos/articulos/seriec_259_ing.pdf, §§ 211–30. Back

2
American Commission in the late nineties, then continuing on with the influence of Judge Augusto Cançado Trindade’s scholarship in the early 2000s, and concluding with the Court’s two most recent cases on the application of human rights and humanitarian law in time of armed conflict. Section 3 will analyse the outlook for the Inter-American Court in the field of international humanitarian law, taking particular interest in one key prominent case: Villamizar et. al. v. Colombia. ¹⁵ I conclude, optimistically, that while perhaps arriving a little late to the debate, the current status of the Inter-American Court’s jurisprudence on international humanitarian law seems to signal the advent of a promising new stage, one where its case law will rapidly become an essential source in the development of the law applicable in times of armed conflict.

1. The Lex Specialis Conundrum

Before one can properly understand the Inter-American System’s stance on international humanitarian law, it is important to understand how international law explains the relationship between international humanitarian law and human rights law; namely what the International Court of Justice (perhaps wrongly) called the lex specialis principle, and its permutations through time. ¹⁶

In order to fully grasp this concept, it is important to first acknowledge that international humanitarian law and human rights law are very different bodies of law. International humanitarian law seeks to reduce human suffering only to the degree that makes sense in the context of a war, where the loss of life will be unavoidable. This is exemplified best by looking into two of its main guiding principles: distinction and proportionality. Under distinction, attacks directed against civilians are banned. ¹⁷ Under proportionality, an attack on a military target would be illegal only when loss of civilian life “is excessive in relation to the concrete and direct military advantage anticipated”. ¹⁸ Based on these and other principles, international humanitarian law assumes some proportional collateral damage to civilians as inevitable.

Human rights law, on the contrary, is a body of laws designed to end human suffering to the greatest degree possible. The very Preamble of the Universal Declaration of Human Rights specifically states that the “advent of a world in which human beings shall enjoy (…) freedom from fear and want [is] the highest aspiration of the common people”. ¹⁹ The Covenant on Civil and Political Rights also states that “no one shall be arbitrarily deprived of his life”. ²⁰

Squaring the warlike nature of international humanitarian law with the more pacifist ideals that inspire human rights law seems therefore quite a difficult endeavour. ²¹ And perhaps this is why for most of their seven decades of co-existence human rights and humanitarian law remained separate: the former applying in peacetime; the latter, in war.

¹⁵ IAComHR, Villamizar et. al.v. Colombia, 28 July 2015, Reports on Merits No. 41/15, OEA/Ser.L/V/II.155 Doc. 21, http://www.oas.org/en/iachr/decisions/court/2016/12335FondoEn.pdf (Villamizar et. al. v. Colombia). Back
¹⁶ V. Todeschini, ‘The ICCPR in Armed Conflict: An Appraisal of the Human Rights Committee’s Engagement with International Humanitarian Law’, Vol. 35 No. 3 Nordic Journal of Human Rights 2015, pp. 203–19. Back
¹⁷ ICRC, Customary IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1 , Customary IHL Rule 1 (stating that “Attacks may only be directed against combatants. Attacks must not be directed against civilians” ). Article 48, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) 1977, 1125 UNTS 3 (requiring parties to an armed conflict to distinguish at all times between the civilian population and combatants, and establishing that parties shall direct military operations only against military objectives). Back
¹⁸ Id. at Article 51(5)(b) (banning only attacks that may be expected to cause incidental loss of civilian life which would be excessive in relation to the concrete and direct military advantage anticipated). Back
¹⁹ Preamble, Universal Declaration of Human Rights, New York, 1948, UNGA Res. 2174A (III). Back
²⁰ Article 6(1) ICCPR (1966). Back
²¹ Y. Dinstein, Non International Armed Conflict in International Law (Cambridge, Cambridge University Press, 2014), pp. 224–225 (arguing that the idea that human rights law and the law of armed conflict can be unified ignores the need to fine-tune the law to the circumstances it applies in). Back

3
This rule of displacement, however, could not hide the fact that human rights treaties themselves specifically claim to apply in times of war. According to the Covenant on Civil and Political Rights, States can take measures derogating from some of their human rights obligations in times of public emergency that threatened the life of the nation. ²² But, absent derogation, the treaty would apply in full. ²³ Even more so, both the European and American Conventions on Human Rights make this provision applicable specifically to war. ²⁴ This clearly meant that human rights obligations were not displaced by the law of war but rather continued to apply fully, unless an express derogation was lodged. Moreover, the Inter-American System allows no derogation with regards to, among others, the right to life. ²⁵ How then to protect individuals from arbitrary deprivation of life at a time when the law itself allows for incidental loss of life?

As is widely known, in its 1996 Advisory Opinion for the landmark Nuclear Weapons Case, the International Court of Justice sought to solve this paradox by claiming once and for all that human rights law continued to apply in wartime and was not displaced by humanitarian law. In one of its most famous passages, it stated:

In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. ²⁶

Under this lex specialis approach then, human rights do not cease to apply during armed conflict. Rather, international humanitarian law should be used to give content to human rights provisions. It was not long however before international law scholars began to notice a few problems with the Court’s rationale. Indeed, while a lex specialis approach fit the right to life well enough, such was not the case with all other potentially affected rights.

The case of internment in armed conflicts provides a very enlightening example: ²⁷ international humanitarian law allows for the detention of individuals when it is necessary for the security of the detaining power. Under human rights law, however, individuals have a right not to be arbitrarily detained, including the right to be presented before a judge as soon as possible for determining their culpability in a criminal act. ²⁸ Both sets of obligations seem incompatible: humanitarian prerogatives allow for detention on security concerns, whereas human rights obligations require detentions only in cases when there is suspicion of a crime. Applying a lex specialis approach to this problem is not as straightforward as the International Court of Justice suggested. Indeed, following Professor Marko Milanovic, ²⁹ how we get to solve this conundrum (or not) depends entirely on what we understand the concept to be.

If lex specialis is a rule of conflict avoidance then international humanitarian law should be used to interpret the “arbitrary” component of human rights law: what is arbitrary under human rights depends on whether humanitarian law was complied with or not. ³⁰ However, there will be instances where this arbitrariness loophole would not be available to legal operators. The European Convention, for example, contains no such vague standard, but rather sets out a list of reasons for which a person can be detained. In order to solve the contradiction, legal operators

²² Article 4(1) ICCPR (1966). Back
²³ UNHCHR, CCPR General Comment No. 29: Article 4: Derogations during a state of Emergency, Adopted at the Seventy-Second of the Human Rights Committee, 31 August 2001, CCPR/C/21/Rev.1/Add.11, § 1. Back
²⁴ Article 27(1) ACHR (1969) and Article 15 ECHR (1950). Back
²⁵ Article 4(2) ICCPR (1996). Similar language exists in Article 15(2) of the ECHR, except that it allows derogations to the right to life solely in respect of deaths resulting from lawful acts of war. Back
²⁶ Nuclear Weapons case, supra note 13, § 25. Back
²⁷ M. Milanovic, ‘Norm Conflicts, International Humanitarian Law and Human Rights Law’, in O. Ben Naftali (ed.), International Humanitarian Law and Human Rights Law (Oxford, Oxford University Press, 2010), pp. 23–24. Back
²⁸ Article 9 ICCPR; Article 5 ECHR and Article 7 ACHR. Back
²⁹ Milanovic, supra note 27, p. 23 Back
³⁰ Id. Back

4
would have to forcibly read the European Convention to include provisions of international humanitarian law that are simply not written in its text –something Milanovic calls “judicial vandalism”. ³¹

Another way to solve this conundrum, then, is to treat lex specialis not as a rule of conflict avoidance but rather as a rule of conflict resolution. In this case, humanitarian law would simply prevail over those human rights norms that contradict it and shroud them completely. Human rights would effectively be displaced by humanitarian law. This is the position of scholars like Yoram Dinstein, who has stated that “[w]hat the lex specialis principle tells us is that, if a discord emerges between [international humanitarian law] and human rights law, [international humanitarian law] prevails”. ³² Under general concepts of the theory of law, this is the common and traditional understanding of the lex specialis principle (the “special law” displaces the “general law”). However, this is not what the Court seemed to be trying to say on this matter.

Indeed, not long after, and aware of the contradictions arising out of its previous affirmation, the International Court of Justice re-formulated its lex specialis dicta in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ³³ stating as follows:

As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law. ³⁴

This approach no longer reflects the traditional understanding of the principle of lex specialis (where the special law takes precedence over the general one), but rather adapts it to clarify the Court’s own prior ambiguity. This was worsened when barely over a year later, in the Armed Activities on the Territory of the Congo Case, ³⁵ the Court repeated its lex specialis dictum, only this time omitting the phrase lex specialis entirely, as if secretly admitting its misnomer. ³⁶ The Court merely concluded that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration”, ³⁷ without establishing which had preference through lex specialis. Such comings and goings ultimately left the international legal community divided and confused about the true nature of this so-called lex specialis principle. In the words of Professors Francois Hampson and Noam Lubell, the Court’s decisions offered more obfuscations than clarity. ³⁸ In fact, an increasing number of scholars are choosing to abandon the name lex specialis entirely and rather reading the Nuclear Weapons Case as the International Court of Justice using the principle of systemic integration instead, under the authority of article 31(3)(c) of the Vienna Convention on the Law of Treaties. As one author puts it: “it appears that the ICJ implicitly resorts to the principle of systemic integration, yet under the guise of lex specialis”. ³⁹

With this state of affairs, it was with quite a bit of excitement that, in 2014, the international legal community welcomed the sentencing of two long awaited cases: Hassan v. United

³¹ Id. , citing Lord Bingham, p. 24. Back
³² Y. Dinstein, Non International Armed Conflicts in International Law (Cambridge University Press, 2014), p. 229. Back
³³ ICJ, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Rep. 2004 (Palestinian Wall case). Back
³⁴ Id. , § 106. Back
³⁵ ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , 19 December 2005, Judgement, I.C.J. Rep. 2005, p. 168 (Armed Activities case). Back
³⁶ Id. , §§ 215¬–16. Back
³⁷ Id. , § 216. Back
³⁸ F. J. Hampson and N. Lubell, ‘Amicus Curiae Brief Submitted in the Case of Hassan v United Kingdom’, October 2013, https://www.essex.ac.uk/hrc/documents/practice/amicus-curae.pdf , § 18. Back
³⁹ Todeschini, supra note 16, p. 207. Back

5
Kingdom ⁴⁰ – before the European Court of Human Rights – and Serdar Mohammed v. Ministry of Defence ⁴¹ – before the United Kingdom High Court of Justice. Both of these cases dealt precisely with the application of human rights law to the detention of a direct participant in hostilities in the so-called “War on Terror”. The latter occurred during the non-international armed conflict in Afghanistan; the former occurred during the international armed conflict in Iraq.

In Hassan, the European Court dealt with the detention of a Mr. Tarek Hassan by British forces during the occupation of Iraq. Upon his detention, Mr. Hassan was interrogated and screened for security risk. After no such risk was detected, he was released two days later. After his release, his brother, Mr. Khadim Resaan Hassan, received news of his death, north of Baghdad, and initiated proceedings against the United Kingdom for the violation of his brother’s rights. Among other things, the applicant argued that in absence of derogation from its human rights obligations, the United Kingdom had violated his brother’s right not to be arbitrarily detained under the specific conditions of article 5 of the European Convention. ⁴²

To defend itself, the United Kingdom made use of the displacement understanding of lex specialis. It specifically argued that:

Where provisions of the Convention fell to be applied in the context of an international armed conflict, and in particular the active phase of such a conflict, the application had to take account of international humanitarian law, which applied as the lex specialis, and might operate to modify or even displace a given provision of the Convention. ⁴³

The Court held that:

[T]he grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) [of the Convention] should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. ⁴⁴

This was a rejection of the theory of displacement (i.e. the “traditional” understanding of lex specialis), but, also, an example of what Milanovic had already warned would constitute “judicial vandalism”. ⁴⁵ Indeed, the Court basically rewrote the European Convention in order to remove any obligation by the United Kingdom to derogate from its human rights obligations before detaining individuals and thereupon added a previously non-existent ground for internment under human rights law, based solely on the provisions of international humanitarian law. This is why the Hassan decision included a very strong worded dissent, where four judges argued that “[b]y attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the convention”. ⁴⁶

In Serdar Mohammed, the United Kingdom High Court evaluated the legality of the detention of claimant, Mr. Serdar Mohammed, who was captured by British forces in northern Helmand, in Afghanistan, under suspicion of being a Taliban commander. Mr. Mohammed was held in captivity for 110 days and was not given any opportunity to challenge the lawfulness of his detention before a judge. The United Kingdom, moreover, had not derogated from its obligations under the European Convention on Human Rights, under the understanding that it did not apply extra-territorially. ⁴⁷

⁴⁰ ECtHR, Hassan v. United Kingdom, Appl. No. 29750/09, 16 September 2014, Judgment. Back
⁴¹ High Court of Justice (UK), 02 May 2014, [2014] EWCH 1369 (QB), Serdar Mohammed v. Ministry of Defence, (Serdar Mohammed v. Ministry of Defence) . Back
⁴² Hassan v. United Kingdom, supra note 40, § 81. Back
⁴³ Id. , § 87. Back
⁴⁴ Id. , § 104. Back
⁴⁵ Milanovic, supra note 27, p. 24. Back
⁴⁶ ECtHR, Hassan v. United Kingdom, App. No 29750/09, 16 September 2014, Partly Dissenting Opinion of Judge Spano, Joined by Judges Nicalaou, Bianku and Kalaydjieva, § 19. Back
⁴⁷ Serdar Mohammed v. United Kingdom, supra note 41, §§ 1–6. Back

6
The Ministry of Defence argued its case under the premise that Mr. Mohammed’s detention was authorized by international humanitarian law, which ultimately completely displaced human rights, including Article 5 of the European Convention, related to detention guarantees. ⁴⁸ The Court disagreed with the Ministry, arguing that unlike the case of international conflicts, during non-international armed conflicts, humanitarian law simply does not offer any authority upon which to detain a person. ⁴⁹ For the Court, humanitarian law merely accepts that States will detain individuals and requires them to offer a bare minimum of rights to their detainees, without actually offering legal basis for the practice. For the Court, authority to detain would have to come from domestic law and human rights. ⁵⁰

Given that humanitarian law offered no authority with which to detain Mr. Mohammed, the Court then simply dismissed the Ministry’s “traditional” lex specialis argument, claiming that there was no international regulation to apply instead of human rights law. ⁵¹ In order for the detention to be legal, then –and given the specificity of Article 5 of the European Convention– the only way in which the United Kingdom could conduct detentions based on “imperative reasons of security” was through derogation of its human rights obligations; something the United Kingdom did not do. ⁵² This judgment, while positively received in scholarship for its contributions to the lex specialis debate, was however later overturned by the United Kingdom Supreme Court, which held authority to detain did exist through United Nations Security Council Resolutions. ⁵³

After all these years, and not without much unnecessary confusion, it seems that the concept of lex specialis will veer away from its traditional displacement understanding and adopt a new shape as a rule of systemic integration. This will likely mean that the international legal community will continue to look for new cases that can offer further clarification as to its nature. And therein lays the question: what can the Inter-American Court of Human Rights – the tribunal that has been addressing armed conflicts since as far back as the late 1980s – contribute to this debate? I will address this in the next section.

2. The Inter-American Court’s Approach to International Humanitarian Law

As I will dwell in more detail below, the Inter-American Human Rights System’s approach to international humanitarian law has had several very distinguishable phases. I will analyse each and their impact for the relationship between humanitarian law and human rights law in the following sections.

A. The Early Years

The first time the Inter-American Human Rights System made express mention to international humanitarian law in the context of a human rights case was the 1997 La Tablada Case ⁵⁴ before the Inter-American Commission of Human Rights. ⁵⁵ On that occasion, a group of 49 individuals stormed the barracks of the “General Belgrano” Mechanized Infantry Regiment No. 3 (known in Argentina as “RIM 3”). The Argentine Government, seeking to reclaim control over its base, launched a military operation aimed at expelling the attackers by force. Around twenty of the

⁴⁸ Id. , § 232. Back
⁴⁹ Id. , §§ 241-246. Back
⁵⁰ Id. , § 301. Back
⁵¹ Id. , § 287. Back
⁵² Id. , §§ 288-292. Back
⁵³ Supreme Court of Justice (UK), 17 January 2017, [2017] UKSC 2, Serdar Mohammed and others v. Ministry of Defence, https://www.supremecourt.uk/cases/docs/uksc-2014-0219-judgment.pdf , §§ 268–270 and 344. Back
⁵⁴ IAComHR, 18 November 1997, Case of Juan Carlos Abella v. Argentina (‘La Tablada’) , Case No. 11.137, Report No. 55/97, (La Tablada case). Back
⁵⁵ Within the Inter-American Human Rights System, petitions are first sent to the Inter-American Commission for evaluation and upon refusal from the responding State to comply with the Commission’s Report, the Commission may later file a petition to the Court for a binding and final determination of the facts. American Convention on Human Rights, 22 November 1969, 1144 UNTS 123, Art. 48–51. Back

7
survivors initiated proceedings before the Inter-American Commission claiming that the Government’s response was disproportionate.

Given that the petitioners themselves made law of war arguments, the Commission decided to evaluate whether the situation at RIM 3 could amount to an armed conflict, despite its short duration of around 30 hours. ⁵⁶ The Commission decided in favour of a finding of armed conflict, arguing that the events at the La Tablada base were concerted hostile acts against governmental armed forces that achieved a sufficiently high level of violence. ⁵⁷

For the Commission, while human rights treaties continued to apply in times of war, none of its rules were prepared to regulate means and methods of warfare. As such, the Commission concluded that:

[T]he provisions of conventional and customary humanitarian law generally afford victims of armed conflicts greater or more specific protections than do the more generally phrased guarantees in the American Convention and other human rights instruments. ⁵⁸

Because of these greater and more specific protections, the Commission considered that:

[W]here there are differences between legal standards governing the same or comparable rights in the American Convention and a humanitarian law instrument, the Commission is duty bound to give legal effort to the provision(s) of that treaty with the higher standard(s) applicable to the right(s) or freedom(s) in question. If that higher standard is a rule of humanitarian law, the Commission should apply it. ⁵⁹

In the end, therefore, the Commission decided that the human rights rules related to the protection of life were better served by deferring to humanitarian law. In fact, it specifically based its findings on Article 29(b) of the American Convention, which bans interpreting the Convention in such a way that restricts the enjoyment or exercise of any right or freedom recognized by virtue of another applicable convention. In other words, by deferring to humanitarian law, the Commission considered that it was better protecting the Tablada attackers’ right to life. ⁶⁰

This favourable approach to international humanitarian law later made it to the Commission’s 1999 Third Report on the Situation of Human Rights in Colombia. ⁶¹ There, it reiterated its position that the American Convention and human rights treaties in general were not able to specifically and adequately regulate situations of armed conflict. ⁶² The Commission therefore considered itself duty-bound to invoke human rights and humanitarian law rules when analysing specific petitions involving alleged abuses by State agents and their proxies. ⁶³ Indeed, it specifically stated that it “proceeds in this manner because both sets of norms apply during internal armed conflicts, although in many cases international humanitarian law may serve as lex specialis, providing more specific standards for analysis”. ⁶⁴

With these assumptions, the Commission set out its interpretive criteria based on a detailed evaluation of the applicable humanitarian law. With regards to the right to life, for instance, it stated:

⁵⁶ La Tablada, supra note 54, § 148. Back
⁵⁷ La Tablada, supra note 54, § 155. The decision itself, however, received criticism: L. Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge, Cambridge University Press, 2007) p. 138: claiming the reasoning of the Commission was open to question given the short duration of hostilities and the limited involvement of the armed forces. Back
⁵⁸ La Tablada, supra note 54, § 159. Back
⁵⁹ Id. , § 165. Back
⁶⁰ Id. , § 164. Back
⁶¹ IAComHR, Third Report on the Situation of Human Rights in Colombia, Doc. No. OEA/Ser.L/V/II.102 Doc. 9 rev. 1, 26 February 1999 (Third Colombia Report). Back
⁶² Id. , Chapter IV, § 10. Back
⁶³ Id. , Chapter IV, § 11. Back
⁶⁴ Id. (underlining in the original) Back

8

[B]oth Article 4 of the Convention and humanitarian law applicable to internal armed conflicts protect this essential right and, thus, prohibit summary executions in all circumstances. However, the Commission in certain instances may not be able to resolve such a case, where it is connected with an armed conflict, by reference to Article 4 of the American Convention alone. (…) Consequently, the Commission must necessarily look to and apply definitional standards and relevant rules of international humanitarian law as sources of authoritative guidance in its resolution of this and other claimed violations of the American Convention in combat situations. ⁶⁵

This is, in essence, a clear restatement of the lex specialis as a systemic integration doctrine as expounded by the International Court of Justice since the Nuclear Weapons case. The Commission went on to explain in detail international humanitarian law’s basic rules, including the principles of distinction and proportionality. ⁶⁶ In fact, the Commission even ventured into topics and legal debates that were very advanced for its time. ⁶⁷ For example, when discussing the standards for distinguishing civilians and combatants in non-international armed conflicts, it specifically referred to the problem humanitarian law scholars now call the “revolving door” scenario, so famously tackled by the International Committee of the Red Cross ten years later. ⁶⁸ The Commission’s work was truly ground-breaking and was the first human rights body to put the International Court of Justice’s theory to practice. This put the Inter-American System at a truly privileged position at the vanguard of international law. The prospect for the system to assume a pivotal role at the heart of the progressive development of the relationship between humanitarian and human rights law seemed quite likely at the time.

Regrettably, this never came to pass. As I will explain in the following section, support for the use international humanitarian law in the Inter-American System dwindled away at the start of the new millennium, precisely at the time when it began to take centre-stage in post-9/11 North America and Europe.

B. The Cançado Trindade Court

The Commission’s approach to human rights in armed conflict reached the Inter-American Court in 2000, in the case of Las Palmeras v. Colombia. ⁶⁹ This case dealt with the detention and later extrajudicial execution of six civilians by officers of the Colombian Police, as well as the injury of a six-year-old boy by an army helicopter. ⁷⁰

In the course of this case, and in accordance with its prior case law, the Inter-American Commission presented its complaint requesting the Court inter alia “to conclude and declare that the State of Colombia violated the right to life, embodied in Article 4 of the Convention and Article 3, common to all the 1949 Geneva Conventions”. ⁷¹

The Colombian Government filed a preliminary objection arguing that the Inter-American Court lacked jurisdiction to apply international humanitarian law. ⁷² For Colombia, the Court could interpret the Geneva Conventions, but not apply them to the case at hand, since the relevant treaty provisions only authorized it to use the American Convention. ⁷³

⁶⁵ Id. , Chapter IV, § 12. Back
⁶⁶ Id. , Chapter IV, §§ 36 and ff. Back
⁶⁷ Third Report on the Situation of Human Rights in Colombia, supra note 61, §§ 45–46. Back
⁶⁸ N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva, International Committee of the Red Cross, 2009), pp. 70–72. Back
⁶⁹ IACtHR, Las Palmeras v. Colombia, Series C 67, 4 February 2000, Judgment (Preliminary Objections), http://www.corteidh.or.cr/docs/casos/articulos/seriec_67_ing.pdf. Back
⁷⁰ Id. , § 2. Back
⁷¹ Id. , § 28. Back
⁷² Id. , § 28. Back
⁷³ This is a complete reversal of the arguments made fourteen years later by the respondent State in Hassan v. United Kingdom, where it was the government that asked the Court to apply humanitarian law and the Court that instead decided to reinterpret human rights in light of humanitarian law. Back

9
Going against the established case law of the Commission, the Inter-American Court completely rejected the Commission’s position and admitted Colombia’s preliminary objection. ⁷⁴ The Court stated that it was competent to determine whether any rule of international law applied by the State in the course of the armed conflict was compatible or not with the American Convention (but not the Geneva Conventions). This meant that it would interpret the norm in question (in this case, international humanitarian law) and analyse it in the light of the American Convention, not the other way around. This approach seemed therefore to indicate that the Court could actually find that the actions of Colombia could simultaneously comply with the Geneva Conventions and also breach the American Convention. This reading was thus a complete distancing from lex specialis (seen as systemic integration), which already was the predominant legal theory of the time. In essence, what the Inter-American Court was proposing was a competing legal theory to lex specialis, one amounting to a rejection of any form of the application of IHL in the resolution of potential norm conflicts, and rather arguing for the exclusive application of human rights law. Ultimately, this was what the Court did, omitting mention of international humanitarian law in the merits judgment of the case.

This distancing is paradoxical, and not in keeping with the Court’s traditional reputation as a legal trail-blazer. In order to fully understand its reasoning, one needs to understand Judge Cançado Trindade’s appended Separate Opinion. Judge Cançado Trindade is a widely respected veteran of the Inter-American System and one of Latin America’s most renowned international law scholars, having sat at the Court’s bench for fourteen years and presiding over it for five. Judge Cançado Trindade’s extensive scholarship has long called for the abandonment of reciprocity as a basis for international law and the promotion and recognition of general obligations owed to all States by their mere belonging to the international order – so called obligations erga omnes. ⁷⁵

In Cançado Trindade’s writings, international law in general has suffered from a compartmentalized approach to these erga omnes obligations, dividing what should be a single corpus of jus cogens norms into three separated causeways: human rights law, humanitarian law, and refugee law. ⁷⁶ Sharing similar aspirations as the proponents of systemic integration, Judge Cançado Trindade believes that these three sets of norms ultimately seek common objectives, and that they therefore can and should tend towards convergence through a single erga omnes “obligation of guarantee” to respect and ensure respect of fundamental rights. ⁷⁷

It is this scholarship that heavily informed the entirety of the Court’s reasoning in Las Palmeras. As stated by Cançado Trindade himself:

In sustaining, as I have been doing, for years, the convergences between the corpus juris of human rights and that of International Humanitarian Law (at normative, interpretive and operational levels), I think, however that the concrete and specific purpose of development of the obligations erga omnes of protection (the necessity of which I have been likewise sustaining for some time) can be better served, by the identification of, and compliance with, the general obligation of guarantee of the exercise of the rights of the human person, common to the American Convention and the Geneva Conventions (infra), rather than by a correlation between sustantive [sic] norms – pertaining to the protected rights, such as the right to life – of the American Convention and the Geneva Conventions. ⁷⁸

Thus, while this rationale shares the same core values as systemic integration, it nevertheless proposes a different solution; almost a wholly different and competing legal theory that focuses

⁷⁴ Las Palmeras v. Colombia, supra note 69, §§ 32–33. Back
⁷⁵ See e.g. IACtHR, Blake v. Guatemala, Series C 36, 24 January 1998, Judgment (Merits), Separate Opinion of Judge A.A. Cançado Trindade, http://www.corteidh.or.cr/docs/casos/articulos/seriec_36_ing.pdf , § 28: stating that “[t]he consolidation of erga omnes obligations of protection, as a manifestation of the emergence itself of imperative norms of international law, would represent the overcoming of the pattern erected upon the autonomy of the will of the State. The absolute character of the autonomy of the will can no longer be invoked in view of the existence of norms jus cogens”. Back
⁷⁶ A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el siglo XXI (Editorial Jurídica de Chile, 2006), p. 185. Back
⁷⁷ Las Palmeras v. Colombia, supra note 69, Separate Opinion of Judge A.A. Cançado Trindade, p.18, § 8. Back
⁷⁸ Id. , § 7. Back

10
not on interpreting specific rights but shared common purposes. This means, therefore, that for Judge Cançado Trindade systemic integration works in a completely different way than for the International Court of Justice. One need not decide whether the right to life should be read through international humanitarian law or through international human rights law, since, in essence, both seek to protect it through the establishment of equivalent obligations of guarantee set forth in article 1.1 of the American Convention, and article 1 of the Geneva Conventions. To Judge Cançado Trindade:

[T]heir contents are the same: they enshrine the duty to respect, and to ensure respect for, the norms of protection, in all circumstances. This is, in my view’ – he continues – ‘the common denominator (…) between the American Convention and the Geneva Conventions, capable of leading us to the consolidation of the obligations erga omnes of protection of the fundamental right to life, in all circumstances, in times both of peace and of internal armed conflict. ⁷⁹

This preference for dealing with international humanitarian law through a general obligation of guarantee makes human rights law take preference in the analysis of each specific right. If the State violates its obligation to guarantee the right to life under human rights, it also violates its obligation of guarantee it under humanitarian law. No further specific analysis as to the application of humanitarian law to the right to life is needed. This view is consistent with Judge Trindade’s own views, whereby human rights protection should always be enhanced, never weakened; or, in his own words:

En el presente dominio del derecho de protección, se ha hecho uso del derecho internacional a efectos de perfeccionar y fortalecer, nunca de restringir o debilitar, el grado de protección de los derechos humanos consagrados, en los planos tanto normativo como procesal. Hay que continuar explorando todas las posibilidades jurídicas con ese propósito. ⁸⁰

In a way, therefore, what Judge Cançado Trindade tells us is international law should not displace the general rules of human rights in favor of the more specific ones of humanitarian law (a “traditional” lex specialis), nor should it try to co-apply them depending on the context in which a specific right is applied (lex specialis seen as systemic integration), but rather, should guarantee the rights under the most protective law of human rights, and extend this conclusion to international humanitarian law, via their shared obligations of guarantee (a lex protector). This approach to the relationship between international humanitarian law and human rights law is unique to the Cançado Trinade Court, and it is a theory that failed to gain any traction outside of Latin America. Beyond Judge Cançado Trindade’s status as a giant of Inter-American law, there are additional convincing reasons that explain why such a unique theory felt so much at home in San José. Indeed, the Court’s case law on treaty interpretation is heavily influenced by what it calls the pro homine principle, whereby, according to Monica Pinto:

…se debe acudir a la norma más amplia, o a la interpretación más extensiva, cuando se trata de reconocer derechos protegidos e, inversamente, a la norma o a la interpretación más restringida cuando se trata de establecer restricciones permanentes al ejercicio de los derechos o su suspensión extraordinaria. ⁸¹

In other words, Inter-American treaty law should be interpreted always in a way that favors the human person. Applied to the relationship between differing treaties, the pro homine principle has led the Court to state that:

[I]f in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail. Considering that the Convention itself establishes that its provisions should not have a restrictive effect on the enjoyment of the rights guaranteed in other international instruments, it makes even less sense to invoke restrictions contained in those other international instruments,

⁷⁹ Id. , § 8. Back
⁸⁰ Cançado Trindade, supra note 76, p. 262. Back
⁸¹ M. Pinto, ‘El Principio Pro Homine: Criterios de hermenéutica y pautas para la regulación de los derechos humanos’, in M. Abregú & C. Courtis (eds.), La Aplicación de los tratados sobre derechos humanos en los tribunales locales, (Buenos Aires, CELS, 1997), p. 163. Back

11

but which are not found in the Convention, to limit the exercise of the rights and freedoms that the latter recognizes. ⁸²

Seen from this perspective, one could conclude that by focusing on human rights law over humanitarian law, the Inter-American Court would be interpreting the provisions of the American Convention in light of the most pro homine body of laws; one where incidental loss of civilian life is not allowed and where force may only be used in cases of self-defence. But finding a contradiction between pro homine and lex specialis (as systemic integration) is more a choice than an inescapable conclusion. Under the latter, the Court would need to choose which legal standards are applicable to the facts of the case. Under the former, the Court would interpret them in the manner most favorable to individuals. Displacement theories, whether it be international humanitarian law displacing human rights (as in “traditional” lex specialis) or human rights displacing humanitarian law (as in Judge Cançado Trindade’s approach), do not reflect the conclusion that both bodies of law must apply simultaneously.

This is clear in, for example, the case law of the Human Rights Committee, where both pro homine and lex specialis considerations are able to peacefully coexist. The Committee has consistently interpreted that conventional rights must not be interpreted restrictively. ⁸³ At the same time, however, it relies on the systemic integration understanding of lex specialis when dealing with the relationship between international human rights law and international humanitarian law, stating that “[w]hile, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specifically relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive”. ⁸⁴ Moreover, in Draft General Comment 36, related to the right to life, and yet unpublished at the time of writing, the Committee stated both that “[t]he right to life is a right which should not be interpreted narrowly” ⁸⁵ and that “[u]ses of lethal force authorized and regulated by and complying with international humanitarian law are, in principle, not arbitrary”. ⁸⁶ Thus, “the Committee cannot evaluate whether IHL as such is violated, for this falls outside its jurisdiction ratione materiae. However, the Committee may assess whether the prohibitions of arbitrary deprivation of life and liberty are infringed during an armed conflict, and to do so it would need to look into whether IHL has been complied with”. ⁸⁷ Simply put, one cannot justify eschewing an entire body of applicable rules on the excuse of avoiding “narrow” interpretations of specific conventional rights.

C. Applying a Lex Protector

A mere nine months after the Palmeras preliminary objection decision, the Court had the opportunity to apply this lex protector standard in Bámaca Velásquez v. Guatemala. ⁸⁸ In this case, the Inter-American Commission argued that, in the context of the Guatemalan non-international armed conflict, army forces illegally detained, tortured and ultimately killed Mr.

⁸² IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Series A 05, 13 November 1985, Advisory Opinion OC-5/85, http://www.corteidh.or.cr/docs/opiniones/seriea_05_ing.pdf , § 52. Back
⁸³ UN Human Rights Committee (HRC), CCPR General Comment No. 6: Article 6 (Right to Life), Adopted at the Sixteenth Session of the Human Rights Committee, 30 April 1982, http://www.refworld.org/docid/45388400a.html , § 5 (stating that “the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures”). Back
⁸⁴ UN Human Rights Committee (HRC), General comment No. 31 [80]: The nature of the general legal obligation imposed on States Parties to the Covenant, Adopted at the 2187th, 26 May 2004, CCPR/C/21/Rev.1/Add.13, http://www.refworld.org/docid/478b26ae2.html , § 11. Back
⁸⁵ UN Human Rights Committee (HRC), Draft General Comment 36: Article 6 (Right to life), July 2017, CCPR/C/GC/R.36/Rev.2, § 3. Back
⁸⁶ Id. § 67. Back
⁸⁷ Todeschini, supra note 16, p. 217. Back
⁸⁸ IACtHR, Bámaca Velásquez v. Guatemala, Series C 70, 25 November 2000, Judgment (Merits), http://www.corteidh.or.cr/docs/casos/articulos/seriec_70_ing.pdf. Back

12
Efraín Bámaca Velásquez, a commander of an insurgent group called Organización del Pueblo en Armas (ORPA).

Given these facts, a lex specialis approach would have required the kind of debate present in Serdar Mohammed, regarding detention authority in internal conflicts and the specific provisions that must be complied with in such situations. But, in Bámaca Velásquez, as per the Palmeras standard, no such thing occurred. ⁸⁹

The Court opened its analysis by once again arguing that it lacked jurisdiction to declare Guatemala internationally responsible for violating humanitarian law. It also argued, however, that it had jurisdiction to “observe that certain acts or omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the 1949 Geneva Conventions and, in particular, common Article 3”. ⁹⁰

This paragraph can be more fully understood if one reads it in light of Judge Cançado Trindade’s approach to international humanitarian law. Indeed, what lies underneath it is the idea that human rights and humanitarian law protect the same fundamental rights, but have been mistakenly separated by international law into different causeways. The Court’s fundamental job, therefore, consists merely in examining the respondent State’s conduct in light of its obligation to respect and guarantee human rights. If this general obligation is not fulfilled for human rights law, then it will also necessarily not be fulfilled for humanitarian law. An analysis of conventional rights under humanitarian law would not be necessary, as the content of the obligation of guarantee is equivalent in both bodies of law.

Under such an understanding, the impact of international humanitarian law is severely limited. While the Court did specifically refer to the lex specialis doctrine, stating that “the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention”, ⁹¹ it never actually did so. Rather, it persistently analysed Guatemala’s breaches of Articles 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial), and 25 (right to judicial protection) of the Convention without mentioning international humanitarian law.

Perhaps predictively, and in tandem with Judge Cançado Trindade’s viewpoints, the Court’s sole express use of international humanitarian law dealt specifically with Guatemala’s failure to comply with Article 1(1) of the American Convention (the general obligation to respect conventional human rights). According to the Court, the contents of Common Article 3 and of the American Convention of Human Rights were equivalent with regard to such rights as the right to life and the right not to be tortured. The Court found, therefore, that Guatemala had violated Article 1(1), in respect of Articles 4, 5, 7, 8, and 25 of the American Convention, through its violation of the provisions of Common Article 3. ⁹²

There are manifest traces of Judge Cançado Trindade’s influence in the drafting of these paragraphs. In many ways, they are basically a restatement of his thesis on the obligation to guarantee and a direct implementation of his arguments in his Separate Opinion for the Palmeras case. The problem is, though, that, as mentioned before, this lex protector approach basically renders international humanitarian law mute, or at best, as a mere confirmation tool, not a body of laws in its own right.

The main problem with the Court’s approach, therefore, is the exact opposite than that of the displacement theory of lex specialis, wherein the application of international humanitarian law renders human rights law irrelevant. Under the lex protector, application of human rights law renders humanitarian law irrelevant. Instead of interpreting the American Convention in light of

⁸⁹ Id. , §§ 207–209. Back
⁹⁰ Id. , § 208. Back
⁹¹ Id. , § 209. Back
⁹² Id. , §§ 207–13. Back

13
humanitarian law, lex protector forces humanitarian law to match human rights provisions under the guise of an overarching obligation of guarantee. The question is: what if the provisions of human rights and humanitarian law, as applied to the specific rights in question, not the obligation of guarantee, simply do not match?

D. An Explanation for Lex Protector

As seen above, even if it never affirmed it so, under the tenure of Judge Cançado Trindade, the Inter-American Court expounded a competing theory to lex specialis that lead it mostly to refrain from applying international humanitarian law to its case law. However, the exclusive application of human rights law to situations of armed conflict should, at least in theory, cause many problems for the consistency of a Court’s jurisprudence. After all, all things being equal, there are many instances in which complying with humanitarian law would mean violating human rights law. That is in essence why the International Court of Justice developed the lex specialis doctrine in the first place.

Indeed, a complete displacement of humanitarian law would bring about unintended and undesirable consequences for the conduct of hostilities. Humanitarian rules were created precisely under the assumption that in times of war, the fabric of society tears to such extents that the application of everyday law would not only be impractical, but unadvisable, especially in non-international armed conflicts. Applying a body of laws designed to ensure peaceful coexistence at a time where such coexistence is no longer tenable would rather increase, not decrease, human suffering. Requiring a State to combat an armed insurrection or a foreign invasion under the human rights standard of absolute necessity, where its forces would be required to act only in self-defence and last resort, would rob it of any form of strategic advantage. Non-state armed groups (which are not bound to comply with human rights treaties) would have every incentive to take advantage of this limitation. This risks leaving civilian populations at the mercy of the enemy, in the hopes that it will also comply with the strict standards of human rights law. But if such a rule were enforceable, if a war were armies only used force in self-defense and last resort existed, then war would not exist, and humanitarian law would not be necessary.

However regretful it may be, history shows that humans believe that at least some causes are indeed worth going to war for. It is the purpose of humanitarian law to constrain such violent impulses to their most humane level possible, while still recognizing their inevitability. It is a law that begins its life in the acknowledgment of a defeat: that peaceful coexistence through human rights was unable to prevent a collapse into violence. To persevere in the sole application of human rights in such trying times simply flies in the face of realism. If human rights solutions could not work in peacetime how can they work in wartime without the help of humanitarian law?

This meant that as a theory, the efficacy of the lex protector standard depended on human rights violations to be so blatantly in disregard of basic notions of humanity that they would end up violating both human rights and humanitarian law, simultaneously. This is a steep challenge. And yet, such gross violations of human rights have actually been a landmark of the Inter-American System since its inception. Indeed, Latin American States have a long and painful history with dictatorship and lack of democratic institutions. Even today there are several accounts of governments repeatedly violating the most basic human rights, ⁹³ something that has even been alerted by Judge Cançado Trindade himself. ⁹⁴ His judgment over the health of Latin American democracy is harsh and difficult to swallow, but true nonetheless. It is an appreciation

⁹³ See e.g.: Human Rights Watch, Punished for Protesting: Rights Violations in Venezuela’s Streets, Detention Centers, and Justice System (United States of America, 2014). Available online at: https://www.hrw.org/sites/default/files/reports/venezuela0514_reportcover_web_0.pdf ; Amnesty International, ‘Brazil’s ‘Trigger Happy’ Military Police Kill Hundreds as Rio Prepares for Olympic Countdown’, 3 August 2015, https://www.amnesty.org/en/latest/news/2015/08/brazil-trigger-happy-military-police-kill-hundreds-as-rio-prepares-for-olympic-countdown/ . Back
⁹⁴ Cançado Trindade, supra note 76, p. 388. Back

14
that can help explain why lex protector, while at odds with contemporary interpretations of international law, seemed to have felt so at home in Judge Cançado Trindade’s Court.

Indeed, while human rights and humanitarian law do differ considerably in the margins, they are also, as Judge Cançado Trindade himself asserts, both premised on the idea that certain inalienable rights cannot be violated under any circumstance. Hence, while humanitarian law and human rights might greatly differ on whether a soldier can shoot an insurgent on sight in the middle of the Amazon jungle, they will both acknowledge – without a second’s doubt – that once that insurgent is under the control of government authorities, he cannot be killed, tortured or denied a chance to challenge his detention. It is mostly because of the egregious nature of human rights violations in Latin America that Judge Cançado Trindade’s theory, focusing more on the deep philosophical underlying similarities than on the more practical outlying differences, was able to perfectly fit the Court’s needs, even if it was in contradiction with the lex specialis theory set out by the International Court of Justice. After all, when a government willfully kills a person held under its jurisdiction, does it really matter if the Court finds the State guilty of arbitrary deprivation of life through application of the absolute necessity standard of human rights law or the humanitarian law prohibition to attack individuals who are hors de combat?

In theory –and especially to the international humanitarian scholar– the answer is of course yes. But, in practical terms, perhaps not. On both accounts, and regardless of whether humanitarian law is applied or not, the respondent State will be found in violation of the American Convention. The only difference will be on the path the Court chooses to reach the same inescapable conclusion that human rights and humanitarian law were violated. This is in practice how the Court dealt with humanitarian law in the late nineties and early two thousands: it simply assumed that it would not have any need to apply it separately from human rights law. Thus, by deciding to apply a lex protector the Court took on a dangerous bet: that cases where the superficial differences between both bodies of law mattered would be scarce, and rather, that cases addressing precisely those fundamental underlying common assumptions – that you cannot kill a prisoner, that you cannot torture people, etc. – would be commonplace. ⁹⁵

With such assumptions, it is easy to understand lex protector as the product of a time where humanitarian law was still unable to properly find its own place in the international legal arena. It is the product of a world still more interested in the negotiations of the Rome Statute and the intricacies of humanitarian intervention than on the contours of lex specialis and international humanitarian law. This, however, was soon to change.

E. Lex Specialis Redux

As the post-9/11 world began to take hold of the international humanitarian law tools at its disposal, it became clear that the human rights community would need to develop an expertise on these matters if it was to properly follow the new millennium’s legal zeitgeist. In 2002, after the US invasion of Afghanistan but before the occupation of Iraq, the Inter-American Commission issued a highly instructive and detailed report on Terrorism and Human Rights that dealt extensively with issues of co-application of humanitarian law and human rights. ⁹⁶ In this Report – which has been widely disseminated and cited ever since its publication ⁹⁷ – the

⁹⁵ Further analysis is needed on the Court’s relationship with humanitarian law under Judge Cançado Trindade’s tenure. During such times, the Court did run into legal misgivings, like, for example, failing to analyse whether the Peruvian cases it tried throughout the late nineties qualified as an armed conflict or not. The Court only determined the existence of an armed conflict after local authorities began to do so, which means that, technically, the Peruvian situation has been analysed under two different bodies of law depending solely on the year in which the application was logged. This, and other problems, are a potential serious concern for the Court’s record that has still not received much scholarly attention. Back
⁹⁶ IAComHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002. Back
⁹⁷ R.K. Goldman, ‘History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights’, Vol. 31 No. 4 Human Rights Quarterly 2009, p. 886 (claiming that the report was “well received by the OAS and has been widely disseminated and cited within the United Nations and the Council of Europe”). Back

15
Commission made express mention of the lex specialis doctrine and – in contrast – specifically failed to cite either Las Palmeras, Bamaca Velásquez, or Judge Cançado Trindade’s scholarship. The Commission affirmed thusly:

Accordingly, in situations of armed conflict, international humanitarian law may serve as lex specialis in interpreting and applying international human rights instruments. For example, both Article 4 of the American Convention and humanitarian law applicable to armed conflicts protect the right to life and, thus, prohibit summary executions in all circumstances. However, reference to Article 4 of the Convention alone may be insufficient to assess whether, in situations of armed conflicts, the right to life has been infringed. (…) Consequently, in such circumstances, one must necessarily look to and apply definitional standards and relevant rules of international humanitarian law as sources of authoritative guidance in the assessment of the respect of the inter-American Instruments [sic] in combat situations. ⁹⁸

This is an express endorsement of lex specialis and, consequently, a direct rejection of the lex protector notion of the Palmeras and Bámaca Velásquez cases. Indeed, unlike Bámaca Velásquez, where the analysis of humanitarian law was restricted to the general obligation of guarantee under Article 1(1), the Commission’s Report on Terrorism and Human Rights undertook a detailed interpretation of six fundamental conventional rights in light of humanitarian law: life, liberty and security, humane treatment, due process and fair trial, freedom of expression, and the obligation to respect and ensure. Importantly, the analysis of the obligation to respect and ensure did not contain any citations to Las Palmeras, Bámaca Velásquez or Judge Cançado Trindade’s scholarship, either.

While it is impossible to say with certainty whether the Commission’s Report had any effect on the Court’s line of reasoning, the truth is that the very next time the Inter-American Court faced a case concerning the application of human rights in times of armed conflict, it seemed to moderate its approach, veering slightly more in favour of lex specialis. Indeed, in the 2004 case of Serrano Cruz Sisters v. El Salvador, ⁹⁹ the respondent State argued that because international humanitarian law was an exception to peacetime human rights, the case had to be examined “in accordance with the applicable lex specialis, which is international humanitarian law [which was] outside the Court’s jurisdiction”. ¹⁰⁰ This was the first time a State argued not only that the Court did not have jurisdiction to find a violation of humanitarian law, but that rather the Court could not even try a case where the applicable law was humanitarian law. This basically forced the Court to analyse the relationship between these two bodies of law in more detail.

The Court declared that “the specificity of the provisions of international humanitarian law that protect individuals subject to a situation of armed conflict do not prevent the convergence and application of the provisions of international human rights law embodied in the American Convention and other international treaties”. ¹⁰¹ As such, the Court argued that it was competent to use humanitarian law to “give content and scope to the provisions of the American Convention”. ¹⁰² Arguably, this was not a general statement recognizing a philosophical amity between both bodies of law through a shared obligation of guarantee (as in Judge Cançado Trindade’s Opinions) nor an affirmation that the Court would only look into the State’s compliance with the American Convention, not humanitarian law (as in Las Palmeras); but actually a means through which two converging, but different, bodies of law, could be co-applied to give content to each other’s specific provisions regarding specific rights.

While the difference in wording seems extremely nuanced, this slight change in discourse did prompt Judge Cançado Trindade to issue a Separate Opinion, in which he showed his dissatisfaction with what he clearly deemed a limited approach. He therein complained that the Court’s decision only refers to the convergence of relevant specific rules of human rights and humanitarian law, understood as causeways for the protection of human rights. He then adds

⁹⁸ Report on Terrorism and Human Rights, supra note 96, § 61. Back
⁹⁹ IACtHR, The Serrano Cruz Sisters v. El Salvador, Series C 118, 23 November 2004, Judgment (Preliminary Objections), http://www.corteidh.or.cr/docs/casos/articulos/seriec_118_ing.pdf ( Serrano Cruz case). Back
¹⁰⁰ Id., § 111. Back
¹⁰¹ Id. , § 112. Back
¹⁰² Id. , § 119. Back

16
that, while reaching the same overall conclusion, he would reason differently, and go further than the Court. He does this by arguing that humanitarian law, and the provisions regarding non-derogable rights in human rights treaties, all belong to international jus cogens, which would be sufficient, in his opinion, to reject the preliminary objection as “manifestly inadmissible”. ¹⁰³ Here, however, he again makes no mention of the distinction between the rules applicable in humanitarian law and human rights law in the interpretation of conventional rights, he simply puts them all in the same category of jus cogens and concludes that the respondent State cannot ask the Court not to apply peremptory norms. From his writing, it seems he was concerned that the Court was distancing human rights and humanitarian law too much already by focusing on specific rights and not more general categories like the jus cogens rules at the heart of his lex protector approach to international humanitarian law. In this vein, he even warns that attempts to disassociate the human rights and humanitarian causeways have always been disastrous (going as far as to making a parallel with George W. Bush’s attempt to disregard the Geneva Conventions during the so-called War on Terror) and ends by restating his position on how refugee law, human rights and humanitarian law should converge to ensure “maximum protection of the individual in any and every circumstance”; that is, that they should operate a la lex protector. ¹⁰⁴

It is evident from Judge Cançado Trindade’s dissatisfaction that the Serrano Cruz Sisters Court had a noticeable change of heart with regards to its own approach to the relationship of human rights with humanitarian law, slightly distancing from what I have called the lex protector, and finally beginning to look further into the notion of lex specialis as stated by the International Court of Justice.

F. The Turning Point

After Serrano Cruz, the Court did not innovate too much in its approach to international humanitarian law until the Presidency of Judge García-Sayán. It was under his tenure that the Court tried two game-changing cases: the Massacre of Santo Domingo ¹⁰⁵ and Chavin de Huántar ¹⁰⁶ cases.

In these cases, the Court dealt with humanitarian law expressly, analysing it with regards to specific conventional rights and not as part of a general obligation to protect. These cases constitute the Court’s most recent jurisprudence on its approach to humanitarian law. In this section I will analyse both cases in order to set out an outlook for the Court’s role in the field of humanitarian law for the years to come.

i. The Santo Domingo Case

The 2012 Massacre of Santo Domingo Case against Colombia is special, as it departs from the typical case received by the Court described above. Unlike Bámaca Velásquez, it does not deal with the forced disappearance, torture or extrajudicial execution of a direct participant in hostilities, but rather with the detonation of an AN-M1A2 cluster bomb over the town of Santo Domingo, close to the border with Venezuela. ¹⁰⁷ This is a regular law of war scenario, dealing with the principles of distinction and proportionality in the context of an armed conflict, similar to what one would expect to find in the jurisprudence of an international criminal law tribunal.

¹⁰³ IACtHR, Serrano Cruz Sisters v. El Salvador, Series C 118, 23 November 2004, Judgment (Preliminary Objections), Separate Opinion of Judge A.A. Cançado Trindade, http://www.corteidh.or.cr/docs/casos/articulos/seriec_118_ing.pdf , §§ 39-40. Back
¹⁰⁴ Id. , § 41. Back
¹⁰⁵ IACtHR, Massacre of Santo Domingo v. Colombia, Series C 259, 30 November 2012, Judgment (Preliminary Objections, Merits and Reparations), http://www.corteidh.or.cr/docs/casos/articulos/seriec_259_ing.pdf (Massacre of Santo Domingo case). Back
¹⁰⁶ IACtHR, Cruz Sánchez et al. v. Peru, Series C 292, 17 April 2015, Judgment (Preliminary Objections, Merits, Reparations and Costs), http://www.corteidh.or.cr/docs/casos/articulos/seriec_292_esp.pdf . Back
¹⁰⁷ Massacre of Santo Domingo, supra note 105, §§ 53 and 195. Back

17
As such, it was the perfect opportunity for the Court to test its renewed interest in humanitarian law.

The facts of the case are as follows: After a group of armed guerrilla fighters botched an attempt to capture a landed aircraft believed to be used for the transport of narcotics, both the Colombian Army and Air Force designed a military operation aimed at suppressing guerrilla activity in the Santo Domingo area. As part of this operation, the Air Force decided to load a cluster bomb into one of its helicopters that was later launched on or nearby the town of Santo Domingo, resulting in 17 civilians deaths and 27 injured, including children. ¹⁰⁸

Colombia did not dispute these facts. ¹⁰⁹ It rather argued that the cluster device had been launched not on the town, but in a wooded area 500 meters north of the town. ¹¹⁰ Colombia further argued that the civilian deaths were caused by a car bomb detonated by the guerrilla after the launch of the cluster bomb. ¹¹¹

One key piece of evidence in the case was a video recorded from a “Skymaster” aircraft involved in the operation. This video recorded the conversation between two helicopter pilots, code-named Hunter and Owl. In it, Owl requests guidance from Hunter on where exactly he is supposed to detonate the cluster device. Hunter says (in Spanish): “[t]o the right of the village there is a wooded area [mata de monte]. We want it on the whiskey edge [west] of that wooded area”. Owl asks for further instruction: “The wooded area that is more to the whiskey or the one here, nearby?” to which Hunter just responds “the one nearby”. ¹¹² Immediately after this conversation, the video shows the wooded area unscathed, while smoke is coming out of the town of Santo Domingo. ¹¹³

Based on its findings, and on the findings of domestic Colombian courts, the Court was not persuaded by Colombia’s arguments and determined that the cluster bomb had indeed been launched on the town of Santo Domingo, not the wooded area to the north. ¹¹⁴ In order to determine the responsibility of Colombia under the Convention, the Court proceeded to use the lex specialis standard. ¹¹⁵ Unlike what happened in Bámaca Velásquez, though, this time, the Court did proceed to interpret the right to life in light of humanitarian law. To do this, the Court correctly decided to abandon the lex protector and analyse the humanitarian law principles of distinction, proportionality and precaution in attack. ¹¹⁶

The Court began its analysis by taki .ng note that domestic Colombian tribunals had found the attack in violation of the principle of distinction. ¹¹⁷ Based on the Court’s analysis of the principle of proportionality, in the next section of its judgment, one can infer that the Court agrees, even if it never expressly specifies it. The Court, therefore, says that “it is not appropriate to analyze the launch of the said device in light of the principle of proportionality” because the attack had not hit a military objective at all. ¹¹⁸

Yet, if this is the Court’s reasoning, then it is regrettable that it never actually offers an explanation as to why distinction was violated. There is, in fact, no detailed explanation in this section as to why the attack in Santo Domingo was considered directed at civilians. Did the pilots, and their superiors, as agents of the Colombian Government, choose the village as the

¹⁰⁸ Id. , §§ 61–63 and 69–70. Back
¹⁰⁹ Id. , § 69. Back
¹¹⁰ Id. , §§ 73 and 195. Back
¹¹¹ Id. , § 195. Back
¹¹² Id. , § 197. It should be noted that the Spanish original for “the one nearby” is “la que está pegadita”, which denotes a higher level of imprecision than what is conveyed by the English translation provided by the Court. Back
¹¹³ Id. , § 198. Back
¹¹⁴ Id. , § 210. Back
¹¹⁵ Id. , §§ 21–26. Back
¹¹⁶ Id. , §§ 212–30. Back
¹¹⁷ Id. , § 213. Back
¹¹⁸ Id. , § 215. Back

18
target? Or did they intend to hit a guerrilla camp and missed? While answering these questions was not essential to the Court’s case, it would have been interesting if it had done so, particularly considering the Court’s express reference to the Prosecutor v. Galić case before the International Criminal Tribunal for the former Yugoslavia. ¹¹⁹ This is the Tribunal’s leading case on distinction and proportionality, ¹²⁰ and one of the first ones in which it addressed the issue of intent for the purposes of distinction in the war crime of “willfully attacking civilians”. In this case, the Tribunal determined that the word “willfully” incorporated the concept of recklessness so that “the perpetrator who recklessly attacks civilians acts ‘willfully’”. ¹²¹ It could have been interesting for the Inter-American Court to explore these concepts in deciding whether to analyze the case as one of distinction or proportionality.

Later, the Court also analyses the all feasible precautions principle. ¹²² Here, the Court never goes into any detail regarding the motives for the decision to load a cluster bomb into the payload of Owl’s helicopter. It merely references that the Air Force conducted briefings and discussions regarding the means that would be used in the operation. Regarding the rationale for the cluster bomb, the Court merely states that “the use of several aircraft was decided, one of them loaded with an AN-M1A2 cluster bomb” ¹²³ and that the operational orders for the mission “consisted in executing an offensive operation against the guerrilla by means of an airborne mission”. ¹²⁴ It does not therefore seem that it thought there was a lack of precautions in the overall planning of the mission but rather in its execution at the hands of Owl and Hunter themselves. In this regard, the Court made two main arguments: that the cluster bomb was too imprecise to warrant use in the specific target area and that Hunter was imprecise in giving instructions to Owl regarding the location of said area. ¹²⁵

On these two grounds, the Court had solid evidence that the execution of the operation had been deficient. First, the launch instructions (“the wooded area nearby”) were too imprecise given that the target area for such an order fluctuated between 500 and 70 meters north of Santo Domingo, and thus was potentially within the weapon’s impact-radius of 250 meters. ¹²⁶ Second, other negligent mistakes were committed throughout the operation, including incidences of shooting friendly fire. ¹²⁷ The Court does a good job in painting the operation as mostly chaotic and poorly executed.

These considerations would have made for a very interesting debate on how would the Court understand the principles of distinction and proportionality, instead of just the all feasible precautions principle. The Santo Domingo case, therefore, while auspicious in regards to the Court’s approach to the application of humanitarian law, had some limitations in just how influential it would be for the Court’s new humanitarian case law. Its importance, however, lays in the fact that it is the first time in the Court’s history that it directly applied humanitarian law to interpret conventional rights, finally placing the Court’s jurisprudence on the right track.

ii. The Chávin de Huántar Case

The 2015 Cruz Sánchez v. Peru case – also known as the Chavín de Huántar case – is one of the Court’s most recent cases related to the application of humanitarian law. The case deals with alleged extra-judicial executions of members of the MRTA terrorist group committed in the

¹¹⁹ Masacre of Santo Domingo, supra note 105, at footnote 310. Back
¹²⁰ ICTY, Trial Chamber I, Prosecutor v. Sanislav Galic, IT-98-29-T, Judgment, 5 December 2003. Back
¹²¹ Id. , § 54. Back
¹²² J. M. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules (Cambridge, Cambridge University Press, 2009), p. 54. Back
¹²³ Masacre of Santo Domingo, supra note 105, § 62. Back
¹²⁴ Id. , § 65. Back
¹²⁵ Id. , § 217, §§ 222–23. Back
¹²⁶ Id. , §§ 217 and 227. Back
¹²⁷ Id. , § 224. Back

19
course of, and the immediate aftermath of, a hostage rescue mission in the Japanese Ambassador’s residence in Lima, Peru. This case, like Santo Domingo before it, had elements that differentiated it from the typical case seen in previous sections of this article, which helped with the framing of the question as one of humanitarian law from the outset. Specifically, the Commission’s case against Peru rested on its claim that two of the three MRTA kidnappers – Herma L. Meléndez and Víctor S. Peceros – had died while hors de combat in the course of the rescue operation. ¹²⁸ The Commission argued that the fact that no weapons were found around their bodies, the number of shots counted in their bodies, and inconsistent testimony regarding their death by the commandos involved, proved that they had been killed while hors de combat. ¹²⁹

The Court began its evaluation of the case establishing the application of humanitarian law through lex specialis, making sure to analyse the specific conventional rights in light of humanitarian law and not just as a separate question. ¹³⁰ In essence, the Court fully eschewed any consideration of lex protector, and focused only on the specific conventional rights affected, stating:

[I]nternational humanitarian law does not displace the application of article 4 of the Convention [related to the right to life], it rather nurtures the interpretation of the conventional clause prohibiting arbitrary deprivation of life [and that] the analysis of the alleged violation of Article 4 of the American Convention will, therefore, need to consider, among others, the principle of distinction, (…) the principle of proportionality and the principle of precaution in attack. ¹³¹

Next, the Court stated that the MRTA kidnappers were not civilians, and therefore did not benefit from the protections of Common Article 3 unless they found themselves hors de combat. ¹³² Having determined the constant targetability of the MRTA kidnappers, the Court in Cruz Sánchez established that “the relevant factual dispute (…) centers on determining if [the MRTA kidnappers] died as a result of the actions of State agents once they were out of combat (…) or whether, on the contrary, they died while they were actively participating in hostilities”. ¹³³ This is a perfect description of the Court’s duties under international humanitarian law. Ultimately, the Court exonerated Peru from any responsibility for the deaths of Ms. Meléndez and Mr. Peceros. ¹³⁴

The findings of the Court in the Cruz Sánchez Case are a hopeful precedent. While the case was politically controversial, it was a good opportunity for the Court to flex its newfound humanitarian law muscles. This time around, the Court thoroughly applied international humanitarian law, even venturing into some of today’s most current debates –such as the nature of armed combatants and the “revolving door” scenario. ¹³⁵ It seems, therefore, (or at least, one can hope) that the Court may have finally found its comfort zone.

3. Looking Forward

In this article, I have shown the evolution of the Inter-American Court’s approach to international humanitarian law has reached a turning point. It has at long last signaled its intent

¹²⁸ Cruz Sánchez et al. v. Peru, supra note 106, § 247. The Commission further claimed that the third kidnapper was executed after the operation had ended. Back
¹²⁹ Id. , § 251. Back
¹³⁰ It should be noted however that the Court relied on the findings of the Peruvian Truth Commission to determine the existence of an armed conflict. It would have been desirable that the Court undertook its own analysis, given that the involvement of the MRTA in the armed conflict need not be the same than that of the Shining Path, which was the main focus of the Truth Commission’s Report. It could very well be the case that at the time of the residence’s takeover, Peru was still engaged in an armed conflict with the Shining Path, but not anymore with the MRTA. Back
¹³¹ Cruz Sánchez et al. v. Peru, supra note 106, §§ 272 and 273. Back
¹³² Id. , § 277. Back
¹³³ Id. , § 287. Free translation. Back
¹³⁴ Id. §§ 340, 342–43. Back
¹³⁵ Id. §§ 276–77. Back

20
to join the global debate on the application of human rights in times of armed conflict and issued its first two major precedents on the matter. As I mentioned, however, its case law is still nascent. With Diego García-Sayán officially out of the Court since 2015, it is yet to be seen whether the Court will be able to build upon its recent successes and consolidate its law of war jurisprudence or if it will once again retreat to the safety and familiarity of human rights law.

One specific case that may be an adequate testing ground for the Court’s approach to international humanitarian law is Gustavo Villamizar et. al. v. Colombia. I will analyse it in the following sections.

A. The Villamizar Case

This case, also known as the “False Positives” Case, is centered on the accusation that since the 1980s the Colombian military engaged in a practice of “unlawful killings of civilians, staged by the security forces to look like lawful killings in combat”. ¹³⁶ The case combines petitions from the representatives of six different victims, all allegedly killed under the same modus operandi by the Colombian Armed Forces: Gustavo Villamizar, Elio Gelves, Carlos Uva, Wilfredo Quiñonez, José Romero, and Albeiro Ramírez. For the purposes of this analysis I will focus solely on the case of Mr. Villamizar.

Gustavo Villamizar was a 25-year-old tradesman. One day, in August 1996, as he travelled from the village of Puerto Contreras, in Venezuela, to Saravena, Colombia, pushing his motorcycle due to a flat tire, he came across a military checkpoint where he was shot four times and killed. ¹³⁷ The army claimed he abruptly turned away from the checkpoint on his motorcycle and was immediately intercepted by a patrolman who demanded him to stop. Mr. Villamizar would have then allegedly produced a weapon and shot at the patrol, which in turn proceeded to kill him in self-defense. ¹³⁸

The Commission found Colombia in breach of its obligations under the Convention, stating that the Colombian Government failed to conduct the proper forensic tests to settle the definitive question on whether Mr. Villamizar actually shot the weapon he was allegedly found with. ¹³⁹ Likewise, contradicting testimony from army officials as well as rebuttals from witness testimony lead the Commission to doubt the Government’s recollection of the facts. ¹⁴⁰ As such, the Commission stated that Colombia “did not satisfactorily address a series of indications pointing to the responsibility of state agents for the acts”. ¹⁴¹ This led the Commission to conclude that the victims were executed by agents of the State “and that there are different elements present of the modus operandi identified during the commission of the acts: i) it pertained to a civilian; ii) the State did not sustain the actual existence of a combat situation, therefore, the [Commission] infers that it was simulated; and iii) with the objective of justifying said simulation, he was accused of being a guerrilla member without any evidence to this effect at the time of the publication of the facts”. ¹⁴²

This is the proper methodology to employ. The key fact for our purposes, however, is the legal standard through which the Commission decides to prove points i) through iii), since they pertain to the definition of direct participation in hostilities and the authorization to use force during a non-international armed conflict.

In its evaluation of the case, the Inter-American Commission set out the legal standard that the Colombian Government needed to satisfy to prove its compliance with the right to life. First, it stated that use of lethal force “must be restricted to circumstances where it is strictly necessary

¹³⁶ Villamizar et. al. v. Colombia, supra note 15, § 47. Back
¹³⁷ Id. , §§ 66–68. Back
¹³⁸ Id. , § 69. Back
¹³⁹ Id. , §§ 76, 100 and 174. Back
¹⁴⁰ Id. , §§ 78, 102, 136 and 179. Back
¹⁴¹ Id. , § 83. Back
¹⁴² Id. , § 83. Back

21
and proportionate”. ¹⁴³ For the Commission, “use of force may be justified, for example, in situations of self-defense or to disarm individuals involved in an armed conflict”, however, “if a person is deprived of his life as a result of the use of lethal force in an excessive and disproportionate manner by State agents (…) it must be considered arbitrary (…). In this aspect, (…) force or coercive means can only be used once all other methods of control have been exhausted and failed”. ¹⁴⁴ Therefore, lethal force must never exceed “what is ‘absolutely necessary’ in relation to the force or threat to be repelled”. ¹⁴⁵ For the Commission, “it is the duty of the State to demonstrate that State authorities attempted to use less lethal means of intervention in the specific case and this failed, and that the action of its security forces was necessary and proportional in relation to the exigencies of the situation, particularly the threat the victim represented”. ¹⁴⁶

The problem with this standard, however, is that it is based on the rules and language of international human rights law, not international humanitarian law, which is the specific legal standard applicable to the Colombian armed conflict, as the Commission itself admitted in its aforementioned 1999 Third Colombia Report. ¹⁴⁷ In the following section, I will review the applicable humanitarian law standards and design a road-map that the Inter-American Court can later follow in its evaluation of this case.

B. The Villamizar Case and International Humanitarian Law

Human rights law requires the existence of self-defense or, as it is known, absolute necessity to authorize use of lethal force. ¹⁴⁸ This entails an obligation to use the least restrictive means to target individuals. Absent self-defense or the defense of someone else’s life, a law enforcement agent needs to always try and exhaust non-lethal means first. In the words of the UN Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, “[a] fleeing thief who poses no immediate danger may not be killed, even if it means that the thief will escape”. ¹⁴⁹ Under such a standard, “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. ¹⁵⁰

Humanitarian law, on the contrary, carries no such an obligation. In humanitarian law, the use of lethal force is not conditioned by the existence of a situation of self-defense. The principle of distinction requires parties to the conflict to show that the targeted individual is not a civilian, but a combatant or a civilian that has lost his protection from attacks as a result of his direct participation in hostilities. Moreover, in case of doubt, the individual must be considered to be a civilian. These are basic rules of modern international humanitarian law enshrined in articles 50(1), 51(3), and 57(2)(a)(i) of Additional Protocol I and 13(3) of Additional Protocol II. ¹⁵¹

There has always been agreement on the fact that a civilian who takes up a rifle and shoots against the army directly participates in hostilities. In this scenario, an individual participates in hostilities from the moment he prepares an attack, through the attack itself, and until such time as he returns from the location of execution. ¹⁵² Historically, less agreement existed, however, on

¹⁴³ Id. , § 54. Back
¹⁴⁴ Id. , § 55. Back
¹⁴⁵ Id. , § 56. Back
¹⁴⁶ Id. , § 58. Back
¹⁴⁷ Third Report on the Situation of Human Rights in Colombia, supra note 61. Except, perhaps, in the case of Mr. Uva, whose death might not be related to the armed conflict. Back
¹⁴⁸ IACtHR, Zambrano Velez v. Ecuador, Series C 166, 4 July 2007, Judgment (Merits, Reparations and Costs), http://www.corteidh.or.cr/docs/casos/articulos/seriec_166_ing.pdf , §§ 83–84. Back
¹⁴⁹ Report of the Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, UN Doc. A/HRC/26/36, 1 April 2014, § 72. Back
¹⁵⁰ Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 27 August to 7 September 1990, Principle 9. Back
¹⁵¹ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), entered into force 7 December 1978. Back
¹⁵² Melzer, supra note 68, p. 61. Back

22
whether this participation could last for longer than this timeframe. ¹⁵³ Take for example the case of Osama bin Laden, who did not take part in a single al-Qaeda military operation and yet was the undisputed leader of al-Qaeda. Was his role in planning operations far away from any combat enough to make him a direct participant in hostilities? What about the al-Qaeda operative who conducts raids during the night, but returns home to a peaceful life by day, every day? Can he be targeted by day? Or just by night?

To address these individuals, the International Committee of the Red Cross proposed the “continuous combat function” doctrine, whereby “members of organized armed groups belonging to a non-State party to an armed conflict cease to be civilians (…), and lose protection against direct attack, for as long as they assume their continuous combat function”. ¹⁵⁴ Civilians that participate in hostilities on a mere sporadic basis, therefore, can only be targeted “for such time” as they are engaged in the hostile act. Civilians who assume a continuous combat function, in turn, can be targeted for as long as that function exists. This concept, albeit rather new and not without controversy, is gaining increasing traction in the field of international humanitarian law. ¹⁵⁵

This distinction is key for the Villamizar case above. Indeed, if studied through the lens of international humanitarian law, the key fact of the case is not whether Colombia was able to show that the alleged victims fired first, but rather whether they were directly participating in hostilities or possessed a continuous combat function. After all, had these individuals been directly participating in hostilities, they could have been targeted as soon as they began preparations for their attack, not just after they opened fire. Likewise, had they been members of any non-state armed group involved in the Colombian conflict, they would have been lethally targetable even in absence of self-defense, until such point as they surrendered or were captured. It would be important for the case, and the Court’s future case law, to specifically state that this is what Colombia has not shown.

This different legal standard is relevant not just merely for the legal purity of the argument, but also for evidentiary purposes: what exactly is it that States need to demonstrate in these kinds of cases? Take for example the Commission’s argument that the Government’s explanation was insufficient because it did not conduct sufficient testing to determine whether the alleged victims actually shot at the soldiers. Such a line of reasoning would suffice to demonstrate that Messrs. Villamizar, Gelves, and Quiñónez did not attack the soldiers triggering self-defense, but it would not show whether they were planning an attack constituting direct participation or whether the Government might have been aware of a pre-existing continuous combat function at the time.

Indeed, the existence of direct participation and/or continuous combat function could theoretically change the outcome of the case, with important implications for the Court’s future case law. Suppose, for example, that Colombia had been able to prove Mr. Villamizar had been in possession of a continuous combat function at the time he ran into the army patrol and that said patrol had all the elements it needed at the time to confirm it. In that case, even under the Commission’s facts and evidentiary materials, Mr. Villamizar’s death would arguably still have been legal. The absence of a prior attack on the soldiers would not have prevented them from opening fire, because soldiers arguably have no duty to capture a direct participant in

¹⁵³ G. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge, Cambridge University Press, 2011, 2nd ed.), p. 202. See also M. Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’, Vol. 1, Harvard National Security Journal, 2010, pp. 5–44; and R. Goodman & D. P. Jinks, ‘The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law: An Introduction to the Forum’, Vol. 42, New York University International Law and Politics, 2010, p. 637. Back
¹⁵⁴ Melzer, supra note 68, p. 70. Back
¹⁵⁵ See for example: M. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’, Vol. 42, New York University International Law and Politics, 2010, p. 697; and D. Akande, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities’, Vol. 59, No. 1, The International and Comparative Law Quarterly, 2010, pp. 180–92. Back

23
hostilities. ¹⁵⁶ Mr. Villamizar would have been subject to lethal attack at all times so long as he did not take the proper steps to surrender himself.

Of course, there is currently an ongoing debate on this very issue, prompted by the Interpretive Guidance itself. ¹⁵⁷ If the Court wishes to make a statement that in the Inter-American System’s understanding, such a duty to capture does exist, it should definitely state it expressly, but – and this is the important part – it should do so in the language of international humanitarian law, and not arrive at that same conclusion through the application of human rights law, as it would certainly be a missed opportunity.

II. Conclusion

The Inter-American Human Rights System has had a spotted relationship with international humanitarian law. As the title of this paper suggests, its relationship has inconsistently drifted throughout the years from acceptance to rejection and back again. This waddling approach, coupled with its unsuccessful attempt at reshaping our understanding of human rights and humanitarian law through what I have called the lex protector theory, led it away from the vanguard of the regulation of armed conflict.

Having recently found room for co-application, the outlook for the Inter-American System seems promising. Cases like Santo Domingo and Cruz Sánchez are definitely a step in the right direction. It will depend on the Court’s take on the upcoming Villamizar case to see if this momentum can be seized or not. The Court’s stature and legitimacy within the international legal community hangs in the balance. It simply can no longer depend on the egregiousness of Latin American violations to sustain a highly respected jurisprudence. Not applying humanitarian law to armed conflict cases through systemic integration is not a sound course of action. It is high time indeed for the Inter-American Human Rights System to claim its well-deserved and long overdue position as an elite forum for the development of the law of armed conflict.

¹⁵⁶ See Solis, supra note 153, p. 206; J.D. Ohlin, ‘The Duty to Capture’, Vol. 97 No. 4 Minnesota Law Review, 2013, p. 1268. See also, ensuing doctrinal debate in: M. Milanovic, ‘When to Kill and When to Capture’, 6 May 2011, http://www.ejiltalk.org/when-to-kill-and-when-to-capture/ ; R. Goodman, ‘The Power to Kill or Capture Enemy Combatants’, Vol. 24 No. 3 E.J.I.L. 2013, p. 819; K.J. Heller, ‘A Response to Goodman About the (Supposed) Duty to Capture’, 13 March 2013, http://opiniojuris.org/2013/03/13/a-response-to-goodman-about-the-supposed-duty-to-capture/ ; A. Haque, ‘A Right to Fight’, 18 January 2017, https://www.justsecurity.org/36104/fight/ ; and R. Goodman, ‘Goodman Responds to Corn, Blank, Jenks, and Jensen on Capture-Instead-of-Kill’, 26 February 2013, https://www.lawfareblog.com/goodman-responds-corn-blank-jenks-and-jensen-capture-instead-kill. Back
¹⁵⁷ J.D. Ohlin, ‘Recapturing the Concept of Necessity’, Cornell Legal Studies Research Paper No. 13-90, 8 March 2013, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2230486 (arguing against a duty to capture by stating that: “if soldiers are facing overwhelming force and they feel that their resistance would be futile, then they always retain the option of laying down their arms and communicating their surrender to their adversary”). Back

24