(Schriftenreihe der Juristischen Fakultät der Europa-Universität Viadrina Frankfurt (Oder)) Jan Römer (auth.) - Killing in a Gray Area between Humanitarian Law and Human Rights_ How Can the National P

Schriftenreihe der Juristischen Fakultät der
Europa-Universität Viadrina Frankfurt (Oder)
Herausgegeben von
Professor Dr. iur. Dr. phil. Uwe Scheffler, Frankfurt (Oder)
For further volumes:

http://www.springer.com/series/3279
Jan Römer
Killing in a Gray Area

between Humanitarian Law
and Human Rights
How Can the National Police of Colombia
Overcome the Uncertainty of Which Branch
of International Law to Apply?
Jan Römer
Dannenriede 37
29525 Uelzen
Germany
janrom@web.de
Dissertation zur Erlangung des akademischen Grades eines Doktors der Rechte
an der Rechtswissenschaftlichen Fakultät der Europa-Universität Viadrina Frankfurt (Oder)
Vorgelegt von: Jan Römer
Erstgutachter: Herr Prof. Dr. Wolff Heintschel von Heinegg
Zweitgutachter: Frau PD Dr. Carmen Thiele
The author has been a delegate of the International Committee of the Red Cross since 2001.
The views expressed in this thesis are those of the author and do not necessarily reflect those
of the ICRC.
ISSN: 1431-7923
ISBN: 978-3-642-04661-2 e-ISBN: 978-3-642-04662-9
DOI 10.1007/978-3-642-04662-9
Springer Heidelberg Dordrecht London New York
Library of Congress Control Number: 2009941067
# Springer-Verlag Berlin Heidelberg 2010

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In love and gratitude,
to my mother
and my father
v
Acknowlegements
I would like to thank my relatives, friends and colleagues who encouraged me to

write this thesis. First and foremost, I would like to mention the various officers of
the National Police of Colombia who provided me with the necessary information
for the thesis, in addition, the ICRC delegation in Bogotá for facilitating the
contacts with the police, Mrs. Luz Marina Tamayo for our discussions, which
helped me define the subject of this thesis, Mr. Nils Melzer and Mr. Robert Frau
for various discussions on the content, Mrs. Corey Barber for proofreading, as well
as Mr. Sebastian Biere for some logistical support. Last but not least, I would like to
thank my advisor (Doktorvater), Prof. Dr. Wolff Heintschel von Heinegg.
vii
Summary of Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 The Situation in Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Armed Conflict not of International Character:
Classification of the Colombian Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. The Term “Armed Forces” in IHL and the National
Police of Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3 Legal Requirements for the Use of Lethal Force . . . . . . . . . . . . . . . . . . . . . . 29

A. Introductory Explanations of the Right to Life . . . . . . . . . . . . . . . . . . . . . . . 29
B. Applicable Branches of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
C. Killing under International Humanitarian
Law (Hostilities) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
D. Killing under International Human Rights Law
(Law Enforcement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
E. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
4 Use of Lethal Force by the National Police of Colombia

in Various Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
A. Introductive Explanations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
B. General Aspects Regarding the Operations . . . . . . . . . . . . . . . . . . . . . . . . . 122
C. Scenario One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
D. Scenario Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
E. Scenario Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
F. Scenario Four . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
G. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
5 Main Findings and Thesis Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
ix
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Content and Questions Addressed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Killing: A General Problem in International Law and Its
Relevance to the Colombian Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. The Gray Area Between IHL and Human Rights in Cases
of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Justification of the Research Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Questions That Are not Addressed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Outline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 The Situation in Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Armed Conflict not of International Character: Classification
of the Colombian Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Article 3 GC I–IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Threshold of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. Party to the Conflict: Groups of Organized Crime
and Banditry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a) Degree of Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(1) Capacity to Carry Out Operations Reaching
the Threshold of Armed Conflict . . . . . . . . . . . . . . . . . . 11
(2) Ability to Implement IHL . . . . . . . . . . . . . . . . . . . . . . . . . . 12
b) Alternative Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
c) Are the Armed Groups Required to Have
a Political Goal? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
d) Can Parties to the Conflict Commit Acts
of Terrorism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(1) View of the US Government . . . . . . . . . . . . . . . . . . . . . . 15
(2) Echoing the US Government’s View . . . . . . . . . . . . . . 15
(3) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
xi
xii Contents
3. Non-State Parties to the Colombian Armed Conflict . . . . . . 17

a) Guerrilla Movements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(1) FARC-EP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(2) ELN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
b) Paramilitary Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
c) Organized Criminal Groups, Namely Drug Smugglers . . . 22
II. Criteria under Article 1 AP II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. The Responsible Command . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2. Control Over Part of a Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3. The Sustained and Concerted Character
of Military Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4. Military Operations Against Governmental
Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5. The Ability to Implement the Protocol . . . . . . . . . . . . . . . . . . . . 26
III. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
B. The Term “Armed Forces” in IHL and the National Police
of Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3 Legal Requirements for the Use of Lethal Force . . . . . . . . . . . . . . . . . . . . . . 29

A. Introductory Explanations of the Right to Life . . . . . . . . . . . . . . . . . . . . . . . 29
B. Applicable Branches of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
I. Applicability of Human Rights and Applicable
Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
II. Relationship Between IHL and the International Law
of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
1. Process of Convergence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2. Different Approaches towards Defining
the Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
III. Which Body of Law Regulates the Matter? . . . . . . . . . . . . . . . . . . . 36
1. Conduct of Hostilities and Law Enforcement . . . . . . . . . . . . . 37
2. Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
IV. Is There a Specific Branch of International Law
for the Fight Against Terrorism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
V. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
C. Killing under International Humanitarian Law (Hostilities) . . . . . . . . . . 41
I. Pertinent Rules for Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
II. Principle of Distinction and Prohibition
of Indiscriminate Attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1. Reasons for the Loss of Protection and the Use
of Lethal Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2. Reasons for the Use of Lethal Force . . . . . . . . . . . . . . . . . . . . . . . 44
3. Notion of “Civilian” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4. Notion of “Member of the Armed Forces” . . . . . . . . . . . . . . . . 45
a) Governmental Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
b) Organized Armed Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Contents xiii
(1)
Civilians or Non-Civilians? . . . . . . . . . . . . . . . . . . . . . . . . 46
(2)
Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
De facto Affiliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) 50
(4)
Excursus: The Term “Combatant” in IHL
Ruling Non-International Conflict . . . . . . . . . . . . . . . . . 51
c) Notion of “Armed Forces” According to Article 3
GC I–IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6. Direct Participation of Civilians in Hostilities . . . . . . . . . . . . 53
a) The Term “Direct Participation in Hostilities” . . . . . . . . . 53
(1) Threshold of Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(2) Direct Causality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(3) Belligerent Nexus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(4) Preparatory and Final Measures with Regard
to Direct Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
b) Evaluation of the Three Constitutive Elements . . . . . . . . 58
(1) Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . . 58
(2) Attempt to Define . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
c) Different Approaches regarding Personal Scope . . . . . . . 60
d) Temporal Scope: Discontinuing the Loss
of Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(1) Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(2) Members of Organized Armed Groups . . . . . . . . . . . . 63
7. Presumption in Situations of Doubt . . . . . . . . . . . . . . . . . . . . . . . 63
8. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
III. Restrictions on the Use of Lethal Force . . . . . . . . . . . . . . . . . . . . . . . 65
1. Human Rights Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2. Principle of Military Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
a) Concept and Scope of Application . . . . . . . . . . . . . . . . . . . . . 68
b) Permissive and Restrictive Functions . . . . . . . . . . . . . . . . . . 70
c) Necessity-Factor with Regard to the Use
of Lethal Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
3. Safeguard of a Person Hors de Combat . . . . . . . . . . . . . . . . . . . 73
a) Article 5 AP II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
b) Article 3 GC I–IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
c) Customary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(1) Category Two: Defencelessness . . . . . . . . . . . . . . . . . . . 76
(2) Category Three: Surrender . . . . . . . . . . . . . . . . . . . . . . . . . 77
(3) Summary of Category Two and Three . . . . . . . . . . . . 78
(4) Category One: To Be in the Power
of the Adverse Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
(i) The Traditional View of the Legal Doctrine . . . . 81
(ii) Test of Practicability of the Proposed
Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
(5) Meaning of “Attack” under the Safeguard . . . . . . . . 83
xiv Contents
(6) The Proviso regarding the Safeguard . . . . . . . . . . . . . . 85

(7) Summary and Definition of “to Be in the Power” . . . 86
4. Relationship Between Hors de Combat
and Military Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
IV. Principle of Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
V. Precautionary Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
1. Precautionary Measures with regard to the Principle
of Distinction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
2. Precautionary Measures with regard to the Principle
of Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
VI. The Prohibition and Restriction of Certain Means
and Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
1. Denial of Quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
2. Perfidy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
3. Specific Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
(Law Enforcement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
I. The Right to Life in ICCPR and in ACHR . . . . . . . . . . . . . . . . . . . . 94
II. Origin of the Term “Arbitrary” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
1. Travaux Pre´paratoires of the ICCPR . . . . . . . . . . . . . . . . . . . . . . 95
2. Travaux Préparatoires of the ACHR . . . . . . . . . . . . . . . . . . . . . . . 96
3. Meaning of “Arbitrary” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
III. “Legitimate Purpose” and “Absolute Necessity” . . . . . . . . . . . . . . 97
1. View of the United Nations’ Human Rights Bodies . . . . . . 97
2. View of the Inter-American Court on Human Rights
and Inter-American Commission on Human Rights . . . . . . 98
3. European Convention on Human Rights
as Interpretative Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
4. Code of Conduct for Law Enforcement Officials
and the Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials . . . . . . . . . . . . . 100
5. Summary of “Legitimate Purpose” and “Absolute
Necessity” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
a) Legitimate Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
b) Absolute Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
6. Is Terrorism a Legitimate Purpose? . . . . . . . . . . . . . . . . . . . . . . 104
IV. Arbitrariness and Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
1. Origin of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
2. Content of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
V. Arbitrariness and Legal Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
1. Origin of the Legal Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
2. Legal Basis in Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
VI. Temporal Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
VII. Further Aspects? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Contents xv
VIII. Precaution, Control and Organisation of the Operation . . . . . 110

1. Prevention of the Escalation of Violence . . . . . . . . . . . . . . . . . 111
a) Arrest at an Appropriate Moment . . . . . . . . . . . . . . . . . . . . 111
b) Sufficient Set-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
2. Evaluation of Available Intelligence Information . . . . . . . . 112
3. Minimization of Risks Caused by the Use of Firearms . . . . 112
E. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
I. Legitimacy of the Use of Lethal Force: Military
Objective and Legitimate Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
II. Restrictions: The Necessity-Factor and the
“Least Harmful Means” Requirement . . . . . . . . . . . . . . . . . . . . . . . . 114
III. Precautionary Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
IV. Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
V. Prohibition of and Restrictions on Certain Means
and Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
VI. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
4 Use of Lethal Force by the National Police of Colombia

in Various Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
A. Introductive Explanations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
I. The Concerned Police Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
1. EMCAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
2. COPES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
II. Justification of the Identified Operations . . . . . . . . . . . . . . . . . . . . 121
III. Methodology of the Identification of the Four Scenarios . . . 121
B. General Aspects regarding the Operations . . . . . . . . . . . . . . . . . . . . . . . . . . 122
C. Scenario One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
I. Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
II. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
1. Localization of the Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
2. Deployment of the Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
3. Confrontation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
III. Legal Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
1. Legal Framework Regulating the Scenario . . . . . . . . . . . . . . . 125
2. Attack of a Military Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
3. Restriction of Having Been Rendered Hors de Combat . . . 127
4. Restriction Due to the Principle of Proportionality . . . . . . 127
5. Further Precautionary Measures . . . . . . . . . . . . . . . . . . . . . . . . . . 128
6. Prohibition and Restriction of Certain Means
and Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
D. Scenario Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
I. Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
II. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
III. Legal Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
1. Requirements of IHL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
xvi Contents
a) Legal Framework that Regulates Scenario Two . . . . . . 131

b) Attack of a Military Objective . . . . . . . . . . . . . . . . . . . . . . . . 132
c) Restrictions Due to the Safeguard of a Person
Hors de Combat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
(1) Defencelessness Due to Unconsciousness,
Being Shipwrecked, Wounded or Sick . . . . . . . . . . . 133
(2) Clear Expression of the Intent to Surrender . . . . . . 133
(3) To Be “in the Power” of the Adversary . . . . . . . . . . 133
d) Principle of Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
e) Further Precautionary Measures and the Prohibition
and Restriction of Certain Means and Methods . . . . . . 134
2. Requirements of the International Law
of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
(1) Defence of One’s Life or that of Another . . . . . . . . 135
(2) Prevention of Escape by Lawful Arrest . . . . . . . . . . 135
c) Temporal Scope of Legitimate Purpose
and Absolute Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
d) Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
e) Precaution, Control and Organization
of the Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
(1) Arrest at an Appropriate Moment . . . . . . . . . . . . . . . . 137
(2) Sufficient Set-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
(3) Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
(4) Minimization of Risks Due to the Use
of Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
E. Scenario Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
I. Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
II. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
III. Legal Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
1. Requirements in IHL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
a) Legal Framework Regulating the Present Scenario . . . . 141
b) Direct Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
(1) Threshold of Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
(2) Direct Causality Between Hostile Acts
and the Threshold of Harm . . . . . . . . . . . . . . . . . . . . . . . 142
(3) Belligerent Nexus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
(4) Temporal Scope: Spontaneous, Sporadic
Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
(5) De facto Affiliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
(6) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
c) Restrictions Due to the Safeguard of a Person
Hors de Combat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Contents xvii
(1) Defencelessness Because of Unconsciousness,

Being Shipwrecked, Wounded or Sick . . . . . . . . . . . 146
(2) To Be in the Power of the Adversary . . . . . . . . . . . . . 146
d) Restrictions Due to the Principle of Proportionality,
Further Precautionary Measures and the Prohibition
and Restriction of Certain Means and Methods . . . . . . 146
2. Requirements in the International Law
of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
c) Temporal Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
e) Precaution, Control and the Organization
of the Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
F. Scenario Four . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
I. Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
II. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
III. Legal Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
1. Requirements in IHL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
a) Legal Framework Regulating the Current Scenario . . . . 151
b) Attack of a Military Objective and the Use
of Lethal Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
c) The Restriction of the Use of Lethal Force . . . . . . . . . . . 152
2. Requirements in the International Law
of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
c) Temporal Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
e) Precaution, Control and Organization
of the Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
(1) Arrest at an Appropriate Moment . . . . . . . . . . . . . . . . 154
(2) Sufficient Set-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
(3) Further Aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
G. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
I. Causes of the Gray Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
II. Degree of Convergence between the Requirements
in IHL and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
1. Shooting by the Attacked Individuals and Their
Attempt to Escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
a) Use of Firearms by the Targeted People . . . . . . . . . . . . . 157
b) Discontinuing the Use of Firearms . . . . . . . . . . . . . . . . . . . 158
2. Escape of Unarmed Guards of the Coca Field
and Their Behaviour in Further Situations . . . . . . . . . . . . . . . 159
xviii Contents
3. Attack with a Very Limited Set-Up . . . . . . . . . . . . . . . . . . . . . . 159

4. Summary of Escape and Limited Set-Up . . . . . . . . . . . . . . . . . 160
5. Arrest at an Appropriate Moment . . . . . . . . . . . . . . . . . . . . . . . . 162
5 Main Findings and Thesis Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

A. Main Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
B. Further Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
C. Thesis Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Other Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Governmental Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Reports of International Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Non-Governmental and Academic Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Travaux Préparatoires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 1
Introduction
Abstract Armed forces operating in particular in a non-international armed

conflict are often confronted with the problem that they cannot classify a targeted
group as one that is or is not party to the conflict. This doubt can be called a gray
area. It leads to a legal uncertainty in which it is unclear whether an operation is
governed by international humanitarian law or the international law of human
rights. The problem is relevant when lethal force is resorted to: is killing legal
under international humanitarian law or human rights standards?
In this thesis, two aspects are taken into account in order to resolve this problem.
First, whether international law itself provides a ruling, according to which it is
clearly defined which branch regulates the operation, is analyzed. Second, the
requirements of the use of lethal force are compared. This comparison is first
realized on an abstract level – the ruling of killing is analyzed in international
humanitarian law and in human rights standards – and on a concrete level – various
operations carried out by the National Police of Colombia are assessed. In the
assessment, it is questioned which particularities and elements the police operation
must have in order to meet the requirements of killing in each branch of law. The
aim of the illustration is to find concrete conclusions about the differences between
IHL and human rights, but also about their similarities. If they are rather similar,
it would not matter if a certain branch of law regulates the Colombian police
operation, for the requirements would be similar under the other branch.
A. Content and Questions Addressed
I. Killing: A General Problem in International Law and Its

Relevance to the Colombian Case
In 2000, the Israeli government officially admitted to following a policy of killing

terrorists as a means of preventing acts of terrorism. The US Government has not
J. Römer, Killing in a Gray Area between Humanitarian Law and Human Rights, 1
Schriftenreihe der Juristischen Fakultät der Europa-Universität Viadrina Frankfurt (Oder),
DOI 10.1007/978-3-642-04662-9_1, # Springer-Verlag Berlin Heidelberg 2010
2 1 Introduction
admitted to such a policy, although it has been willing, at times, to kill in order to
prevent acts of terrorism that targeted its citizens.1 Since then, the question of
lawful killing in international law has become a major issue, particularly for human
rights defenders, the legal doctrine, and various international organizations’ human
rights bodies, such as the United Nations and the Organization of American States.
Moreover, on 13 December 2006, the Israeli Supreme Court ruled on the Israel
Defence Force’s praxis of targeted killing.
The discussion of lawful killing is related mostly to Israel and the USA in their
fight against terrorism. Legitimate killing is not often discussed in other contexts.
However, it is important to do so. For example, in 2007, the military and police
forces in Colombia officially killed 2,703 members of different “guerrilla groups,”
“self-defence groups,” and “criminal bands”.2 In 2008, another 1,564 members of
these groups were officially killed by the military and police.3 These figures are
high and should be of grave concern.
II. Legal Framework
Different branches of international law can be applied when analyzing the legality
of killing. International humanitarian law (IHL) applies to special situations,
namely that of armed conflict. In cases that are not considered armed conflict,
only international law of human rights applies.
III. The Gray Area Between IHL and Human Rights in Cases of
Armed Conflict
In the case of armed conflict, both branches of international law might be applicable,
and therefore, the question arises of which to apply. This can lead to considerable
difficulties since the branches differ. One fundamental difference is that humanitarian
law requires that humanitarian concerns and military necessity be balanced. The
primary goal of military necessity is to achieve the submission of the enemy at the
earliest moment possible, with the least possible expenditure of personnel and
resources. Military necessity justifies all force that is not prohibited by international
law. Thus, killing can be considered to be such a necessity. Conversely, the use of
1
For example, on 3 November 2002, an unmanned aerial vehicle, operated by the US Central
Intelligence Agency, launched a missile at a car of suspected terrorists that was travelling through
the Marib province of Yemen, killing six people.
2
Source: Colombian Ministry of Defence, Logros de la seguridad democratica – Junio 2008,
p. 50 ff.
3
Source: Colombian Ministry of Defence, Logros de la seguridad democratica – Cifras preliminares
2008, p. 50 ff.
B. Justification of the Research Topic 3
deadly force is strictly limited under human rights law. It is required that a person not
be “arbitrarily” deprived of his/her life.4
Since the ruling seems to be very different, it is necessary to clarify which branch
of law regulates a concrete situation, namely in cases of armed conflict, when both
branches might be applicable. Moreover, if one finds a theoretical solution, it does
not automatically satisfy concerns for the praxis. For example, one might hold that
IHL regulates hostilities while human rights regulate operations of law enforcement
outside hostilities. In practice however, there might be a situation in which it is
unclear whether an operation takes place in or outside hostilities. On the contrary, it
is often stated that in the context of armed conflict, it is of considerable difficulty to
classify operations within these two categories.5 An operation can be designated, as
one either inside or outside hostilities, but the situation remains too unclear for a
correct classification. This leads to a gray area where both branches of law may be
applicable. It is obvious that these gray areas lead to legal uncertainty.
B. Justification of the Research Topic
Despite the known problematic nature of the practice – that state forces cannot
always precisely classify their operations – no attempts have been made to discuss
this topic further. Hence, it is more than appropriate to come up with further
guidance on which branch of law – IHL or human rights law – is applicable in
situations that fall into this gray area. The purpose of this thesis is therefore to
provide a resource for the practice so that it can overcome the problem.
It is adequate to relate the problem of the gray area to the right to life and lawful
killing, since the differences between IHL and human rights are obvious with
regard to this right. But which approach can contribute to resolving this problem?
In this thesis, two aspects of the problem are taken into account. First, it is
analyzed whether international law itself provides a ruling, according to which one
branch regulates the operation and not the other. Second, the requirements of the
use of lethal force are compared. This comparison is first realized on an abstract
level, i.e. the ruling of killing legally is analyzed in each branch of law. Once the
requirements are defined, they are also compared on a concrete level. In order to do
so, different operations are assessed. The conduct of these operations is described
and assessed in terms of both branches of law. Thus, the particularities and elements
that a case must have in order to meet the requirements of killing in each branch of
law are illustrated. It is assumed that a comparison of the rules on an abstract level
can help to reach some conclusions. However, assessing these rules in concrete
examples can also result in further findings. Thus, the aim of this illustration is to
4
Watkin, Use of Force, p. 9 f.
5
Droege, Interplay IHL and Human Rights, p. 332; Watkin Use of Force, p. 28 ff; ICRC, Direct
Participation in Hostilities – Summary Report III, p. 12.
4 1 Introduction
find further conclusions about the differences between IHL and human rights, but
also about their similarities. If they were rather similar, it would not matter if a
certain branch of law regulates the operation, for the requirements would be similar
under the other branch. Accordingly, the differentiation between the two branches
would be less important. Conversely, if the requirements were rather different, it
would be important to differentiate between the two branches of law.
In addition to the aforementioned problem, further questions are worth analyzing
in detail.
In IHL governing non-international armed conflict, two aspects are of particular
interest. First, how does one qualify the members of a non-state organized armed
group? Are its members to be considered civilians or non-civilians? Moreover, the
meaning of “direct participation in hostilities” must be clarified. These elements
were analyzed by a group of experts.6 The results apparently do not provide a
definition of the term “direct participation in hostilities.” The group’s findings are
taken into account, evaluated, and a definition of the term is proposed.
Second, attempts are made to prove that, in situations where IHL is applicable,
killing is not an unlimited right when it is used against an adversary, but there are
restrictions on it. In legal doctrine, it can be observed that many scholars refer to
human rights to rule on the restriction. This is already questionable since it causes
an intermingling of the two branches of law. Recently, a further opinion has
emerged that restricts the use of lethal force by referring to IHL, namely the
principle of military necessity.7 A specific rule in IHL, however, has not been
taken into account. Therefore, it seems to be necessary to assess whether IHL itself
provides a specific restriction on the use of lethal force that is applied against an
adversary.
With regard to the human rights framework, it has to be noted that the conventions
pertinent to Colombia are the International Covenant on Civil and Political Rights and
the American Convention on Human Rights, both of which have ruled, “no one shall
be arbitrarily deprived of his life.” The wording of the two rulings is identical. Does
this lead to an identical ruling in both treaties? The comparison of both provisions
has been only marginally discussed by the legal doctrine. Hence, the origins and
interpretation of both are analyzed in order to provide an answer to this question.
It is appropriate to relate the whole subject to the Colombian context. As stated
before, the number of people killed by military and police forces is high, indicating
the need to relate this subject to the country context. In the following chapters, it
is shown that a legal gray area has resulted within the Colombian case from
various military operations conducted by state forces. Moreover, the Colombian
Ministry of National Defence has recently identified the problematic nature of the
gray area in which its military and police forces operate. With the purpose of
6
ICRC, Direct Participation in Hostilities – Summary Report III.
7
Melzer, Targeted Killing, p. 278 ff.
C. Questions That Are not Addressed 5
overcoming the resulting legal uncertainty, the ministry started developing a study
called “operational law,” in order to provide guidance on this subject.
It is worth mentioning that the various scenarios of operations that are subject
of an assessment under IHL and human rights are conducted by the National
Police of Colombia. Like the armed forces, the National Police are involved in
operations against both guerrilla groups and bands of organized criminals. Thus,
there is a risk of conducting operations in legal gray areas. It has been decided
that scenarios in which the police, and not the armed forces, are involved should
be analyzed, since the role of the police in Colombia has increased in recent
years. This is a result of the current government’s policy of democratic security
and defence (Polı´tica de Defensa y Seguridad Democrática); in 2002, police units
were present in 940 of the 1,098 municipalities; in 2003, their presence increased
to 1,077 municipalities; and since 2004, the police have been present in all
municipalities. From 2002 to December 2008, the number of police officers
increased from 104,420 to 145,871.8 New structures have been developed, e.g.
mobile squadrons (Escuadrones Móviles de Carabineros), which consisted of
8,400 agents in March 2007.9 These units are intended to assure the presence
of police in remote areas where they are fighting guerrilla groups inter alia.
As the subject is related to the Colombian case, its national jurisdiction, in
particular the Colombian Constitutional Court, and part of the legal doctrine are
taken into account and discussed. This is also done with regard to international
jurisdiction and quasi-jurisdiction that Colombia is subject to, in particular, the
Inter-American Court and Commission on Human Rights, as well as the United
Nations Human Rights Committee.
C. Questions That Are not Addressed
This thesis does not analyze the Colombian case in depth. The roots and causes of
violence in Colombia are diverse and complex, and include social and economic
dimensions. Moreover, the history of violence goes back not only to the country’s
independence and the declaration of Gran Colombia in 1819, but also to Spanish
colonial times. Instead of giving an exhaustive description of the conflict, this thesis
aims to paint a basic picture of the context in which these legal questions arise in
order to demonstrate why these questions need to be answered. Thus, it is important
to discuss the present situation in Colombia; in particular, if an armed conflict is
taking place, and who is a party to the conflict. The author is aware that certain
aspects of the Colombian case may be simplified in this thesis.
8
Colombian Ministry of Defence, Logros de la seguridad democratic – Cifras preliminares 2008,
p. 73.
9
Colombian Ministry of Defence, Logros de la Polı́tica seguridad democrática – Mayo 2007.
6 1 Introduction
The lawful use of lethal force is not analyzed under domestic law, but under
international law. Therefore, Colombian law is only discussed when it is necessary
to assess the requirements in international law.
Moreover, there are restrictions on legal killing in both branches of international
law. This could be related to the recent development of non-lethal weapons. Despite
its important significance, this will not be discussed in this thesis due to the topic’s
complexity and because it requires profound technical know-how.
Finally, whether the current legal framework of IHL and human rights law is
adequate and satisfactory for the international community’s fight against international
terrorism will not be discussed. In the aftermath of the attacks on 11 September 2001 in
New York and Washington DC, a discussion was launched, in particular by the US
Government, which claimed that the current legal framework was too restrictive on
the use of force, hindering an effective fight against terrorists. This discussion is dealt
with elsewhere, and will not be repeated in this thesis.10 Hence, the question is only
related to currently existing international law.
D. Outline
As the thesis relates to the situation in Colombia, it is necessary to analyze whether

there is an armed conflict in Colombia and if IHL is applicable. This is the content
of Chapter 2, “The Situation in Colombia.” In this chapter, the question of whether
there is an armed conflict in Colombia is dealt with, and the role of the National
Police of Colombia is outlined. In Chapter 3, “Legal Requirements for the Use of
Lethal Force,” the relationship between IHL and human rights law is clarified, and
the requirements that need to be met in order to kill lawfully under each of the two
branches are analyzed. In Chapter 4, “Use of Lethal Force in Various Operations of
the National Police of Colombia,” practical scenarios are illustrated, and the
question of whether the requirements under IHL and human rights law differ
more than they overlap is assessed. This analysis will help the author to draw
further conclusions about the problem of conducting operations in gray areas, and
provide approaches to overcome legal uncertainties. Finally, the thesis’ main
findings are presented in Chapter 5, “Main Findings and Thesis Statement.”
10
See in particular, Melzer, Targeted Killing – Dissertation, p. 105.
Chapter 2
The Situation in Colombia
Abstract In Colombia, there is an armed conflict not of international character

under Article 3 GC I–IV that also meets the criteria under Article 1 AP II. The
National Police of Colombia participate in this conflict as a state party; the Fuerzas
Armadas Revolucionarias de Colombia – Eje´rcito del Pueblo and the Eje´rcito de
Liberación Nacional as non-state organized armed groups. There are various so-
called “new groups” of paramilitaries that cannot be qualified as a party to the
conflict as a whole. Due to a lack of complete information about the organization of
these groups, it is also difficult to identify at least some of them as such with
certainty. Hence, an operation against these groups occurs in a gray area.
A. Armed Conflict not of International Character:

Classification of the Colombian Case
It is often said that there is a non-international armed conflict in Colombia.1 IHL

governs two types of armed conflict: one that is between (at least two) states and is
1
E.g. ICRC Report of Activities 2004 in Colombia, p. 6: “A la luz del DIH, la situación existente en
Colombia presenta todos los elementos constituyentes de un conflicto armado no internacional, en
el cual se son aplicables el artı́culo 3 común a los cuatro Convenios de Ginebra y el Protocolo
adicional II.” Following the publication of said report, there was overwhelming agreement among
the Colombian press (in particular, the editorial board of El Tiempo, 04.05.05, affirmative El
Heraldo, El Pais, El Colombiano, and El Mundo, all dated on 06.05.2005). Also, various experts
agree, in particular, the UNHCHR, Annual Report on Human Rights in Colombia, 2006, p. 4;
Villaraga, Conflicto armado y derecho humanitario en Colombia, p. 259 ff; Comisión Colombiana
de Juristas, Violaciones al DIH, p. 281 ff; Nieto, Delito polı́tico y DIH en Colombia, p. 354 ff;
Valencia, Derecho humanitario para Colombia, p. 122 ff; Orozco, Combatientes, rebeldes y
terroristas, p. XVIII. However, contrary to the previous administrations, the current government
denies the existence of an armed conflict. On the other hand, it claims that IHL is applicable,
namely Article 3 GC I–IV and AP II [sic]. Furthermore, in the document “Polı́tica de Defensa y
Seguridad Democrática (2003)” that explains its security policy, it is stated that its goals are “la
8 2 The Situation in Colombia
considered international, according to Article 2 Geneva Convention of 12 August

1949 I–IV2, and one that is “not of international character,” as ruled in Article
3 GC I–IV and Protocol II of 8 June 1977.3 Colombia ratified the four Geneva
Conventions and the AP II.4 It is analysed whether these provisions are applicable
to the Colombian case. Since Article 3 GC I–IV and AP II define different criteria,
the requirements of both norms are assessed consecutively.
I. Article 3 GC I–IV
Article 3 GC I–IV requires “armed conflict not of an international character

occurring in the territory of one of the High Contracting Parties” in order for it to
be applied. The norm does not provide a definition of the notion “armed conflict not
of international character”. The meaning of the concept must be clarified.
convivencia y la resolución pacı́fica de los conflictos” (p. 57), and it reiterates many times that there
are “organizaciones armadas ilegales”. On certain occasions, the government, namely the
president, spoke about an armed conflict. E.g. on 06.09.2005, he held that, “en aras de las superiores
conveniencias de la patria, depongo mis personales convicciones y en nombre de la institución
presidencial acepto que hay conflicto” when he conceded the ELN’s postulation about the existence
of an internal armed conflict (Source: High Commissioner of Peace, available at http://www.
altocomisionadoparalapaz.gov.co/eln/acercamientos.htm; last visit 16.07.2009). Hence, the
different statements by the current government are inconsistent, and rather contradictory. Certain
state agencies, such as Procuradurı́a General de la Nación and Defensorı́a del Pueblo, hold that
there is a non-international armed conflict in Colombia. The latter published in its 22nd Report
(Enero-diciembre 2004), p. 42 ff: “La Defensorı́a del Pueblo – en ejercicio de su Magsitratura
Moral en materia de derechos humanos y derecho internacional humanitario – ha considerado que
en Colombia padecemos un conflicto armado interno, en el cual se aplica la normatividad del
artı́culo 3 - común – de los cuatro Convenios de Ginebra de 1949 y de su Protocolo adicional II de
1977. En este sentido, la Defensorı́a de Pueblo comparte el punto de vista del Comité Internacional
de la Cruz Roja (CICR), expresado en su informe 2004 sibre nuestro paı́s”.
2
Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed
Conflicts in the Field, UNTS Registration No. I-970 (in the following called GC I); Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea, UNTS Registration No. I-971 (in the following called GC II); Geneva
Convention relative to the Treatment of Prisoners of War, UNTS Registration No. I-972 (in the
following called GC III); Geneva Convention relative to the Protection of Civilian Persons in Time
of War, UNTS Registration No. I-973 (in the following called GC IV).
3
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts, UNTS Registration No. I-17513 (in the following
called AP II).
4
The Colombian Congress ratified the four Geneva Conventions on 08.11.1961. The date of entry
into force was 08.05.1962. Additional Protocol II of 1977 was ratified on 14.08.1995 by congress.
The Protocol was declared to be in conformity with the constitution by the Colombian
Constitutional Court, Sentencia No. C-225/1995, 18.05.1995, and entered into force on
15.02.1996.
A. Armed Conflict not of International Character: Classification of the Colombian Case 9
1. Threshold of Application
The term “non-international armed conflict,” according to Article 3 GC I–IV, has

not been defined by scholars or by international jurisdiction. Instead, both exclude
“situations of internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence and other acts of a similar nature” as confirmed in Article 1.2
AP II.5 It is held that an armed conflict is indicated when the legal government is
obliged to have recourse to the regular military forces.6 However, this requirement
is imprecise. In one state, the police could be well trained to patrol with violent
tactics and heavy weaponry; while in another state with a poorly trained and
equipped police forces they could be quicker to use the armed forces against
insurgency.7 In order to apply Article 3 GC I–IV, one should ask if a certain
intensity of violence has been reached within the conflict. According to the
Inter-American Commission on Human Rights, the threshold is reached in armed
confrontation of low intensity and does not require large-scale and general
hostilities to exist.8 The International Criminal Tribunal for the former Yugoslavia
holds that the decisive criterion is the existence of “protracted armed violence”.9
5
Moir, Internal Armed Conflict, p. 32 ff.; Ben-Naftali/Michaeli, Israeli Policy on Targeted
Killings, p. 257; IIHL, IHL and Other Legal Regimes, p. 5; Colombian Constitutional Court,
Sentencia No. C-291/2007, 25.04.2007, p. 42. This view is confirmed in the Rome Statute of the
International Criminal Court, UNTS Registration No. I-38544 (in the following called ICC
Statute), Article 8.2 lit. d, “Paragraph 2 (c) applies to armed conflicts not of an international
character and thus does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature.”
6
Pictet, Commentary GC I, Article 3, p. 49. ICTY, Tadic Case, Case No. IT-94-1, Decision
02.10.1995, } 70, Delalic Case, Case No. IT-96-21, Judgment 16.11.1998, } 184; ICTR, Akayesu
Case, Case No. 96-4, Judgment 02.09.1998, }} 619 ff.
7
Moir, Internal Armed Conflict, p. 38 ff; IIHL, IHL and Other Legal Regimes, p. 6.
8
IACiHR, Abella v. Argentina, Case No. 11.137, Report No. 55/97, 18.11.1997, } 152. The case
concerned an attack by 42 armed individuals on a battalion. The attackers managed to enter the
barracks and seize some weapons. The subsequent confrontation lasted some 30 h. Pictet,
Commentary GC I, Article 3, p. 50 seems to go even further suggesting that Article 3 GC I–IV
should be applied as widely as possible, adding, “What Government would dare to claim before the
world, in a case of civil disturbances which could justly be described as mere acts of banditry, that,
Article 3 not being applicable, it was entitled to leave the wounded uncared for, to inflict torture
and mutilations and to take hostages?” However, such a view would contradict the concurred
opinion that Article 3 GC I–IV excludes cases of internal disturbances.
9
ICTY, Tadic Case, Case No. IT-94-1, Decision 02.10.1995, } 70 holds, “On the basis of the
foregoing, we find that an armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and organized armed groups
or between such groups within a State. International humanitarian law applies from the initiation of
such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of
peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that
moment, international humanitarian law continues to apply in the whole territory of the warring
States or, in the case of internal conflicts, the whole territory under the control of a party, whether or
not actual combat takes place there”. Affirmative ICTR, Akayesu Case, Case No. 96-4, Judgment
02.09.1998, } 619; Moir, Internal Armed Conflict, p. 42 ff. See also Article 8.2 lit. f ICC Statute
ruling on a non-international conflict “when there is protracted armed conflict”.
For decades, the Colombian state has relied on its armed forces to fight against
rebel groups.10 Military confrontations do not occur all over Colombia, but rather in
rural areas. The intensity of these confrontations is not low. The Colombian courts,
in particular the Constitutional Court of Colombia, has constantly qualified the
situation as a non-international armed conflict that has been ongoing for decades,
and has applied Article 3 GC I–IV accordingly.11 The Organization of American
States, namely the Inter-American Court on Human Rights and Inter-American
Commission on Human Rights, agree on this.12
2. Party to the Conflict: Groups of Organized Crime and Banditry
The applicability of Article 3 GC I–IV is related to the parties to the conflict.

Therefore, the parties to the conflict must be analyzed and defined. During the
preparation of the draft of Article 3 GC I–IV, a fear arose that common or ordinary
criminals would be encouraged to give themselves a semblance of organization
under IHL. If they claimed that an act of petty crime was an “act of war,” they could
seek protection under the conventions, either to escape punishment, or to benefit
from their rights as parties to the conflict.13 Hence, attempts were always made to
10
The current government has underlined the role of the armed forces in several documents. For
example, President of the Republic of Colombia/Ministry of Defence, Polı́tica de Defensa y
Seguridad Democrática (2003), p. 16, “La Fuerza Pública iniciará el proceso de consolidación
del control estatal sobre el territorio, asegurando su presencia permanente y definitiva en todas las
cabeceras municipales, con el apoyo de brigadas móviles y demás unidades de las Fuerzas Militares
y de la Policı́a Nacional. Unidades compuestas por soldados regulares, soldados campesinos y
carabineros de la Policı́a Nacional asegurarán el mantenimiento del control territorial.” This is
confirmed in Colombian Ministry of Defence, Consolidation of Democratic Security (2007).
11
Colombian Constitutional Court, Sentencia No. C-225/1995, 18.05.1995, p. 55: “En el caso
colombiano, además, la aplicación de esas reglas [del DIH] se revela particularmente imperiosa
e importante, puesto que el conflicto armado que vive el paı́s ha afectado de manera grave a la
población civil”. Sentencia No. C-092/96, 07.03.1996, p. 16 ff: “La estabilidad institucional y
la seguridad del Estado, se ven en este caso concreto afectado por hechos independientes de la
confrontación armada que desde hace varios decenos se presenta en varios lugares del paı́s.” As
well as Sentencia No. C-172/04, 02.03.2004, p. 30 ff: “La degradación del conflicto armado
colombiano ha ocasionado que un grupo numeroso de niños, niñas y jóvenes se vean involucrados
en ese ambiente hostil, en ese escenario aterrador y desolador de la guerra”. See also Sentencia No.
C-991/2000, 02.08.2000; Sentencia No. T-1635/2000, 27.11.2000 ; Sentencia No. C-48/2001,
27.01.2001 ; Sentencia No. T-327/2001, 26.03.2001; Sentencia No. C-802/2002, 02.10.2002;
Sentencia No. C-127/2006, 22.02.2006; Sentencia No. C-370/2006, 18.05.2006; Sentencia No.
C-575/2006, 25.07.2006; Sentencia No. C-291/2007, 25.04.2007. The quoted decisions are not (at
all) exhaustive. Contrary to: Gaviria, Sofisma del Terrorismo, pp. 42 ff, 52 ff, which denies that a
non-international armed conflict in Colombia is taking place, without providing any argument
against the fact that the government relies heavily on its armed forces, indicating an high intensity
of conflict which is met in Article 3 GC I–IV. However, his argumentation is merely based on the
criteria under Article 1 AP II, without taking into consideration those under Article 3 GC I–IV.
12
IACtHR, Las Palmeras Case, Serie C No. 67, Judgment 04.02.2000; Mapiripán Massacre, Serie
C No. 134, Judgment 15.09.2005; IACiHR, Third Report on Colombia, 1999.
13
Pictet, Commentary GC I, Article 3 pp. 44, 49.
exclude groups of organized crime and banditry. It happens that such groups also
use force against state power; even force of considerable intensity, as occurred in
Colombia when Pablo Escobar declared a war against state power, promising
a reward for each police officer killed.14 In such a situation, it is difficult to
distinguish between the groups that do and do not fall under Article 3 GC I–IV.
The Inter-American Commission on Human Rights comments on this problem in its
third report on Colombia (1999):
The armed dissident movements have developed a confusing combination of alliances and
simultaneous clashes with other actors in organized crime. The armed dissident groups
have also developed ties with the drug trade, where they frequently levy taxes against drug
producers and transporters in exchange for protection of the trade.15
In the following, which of the different groups can be qualified as non-state party
to the conflict (a synonym to “organized armed groups”) under Article 3 GC I–IV,
and which groups cannot because they only commit ordinary crimes, is analyzed.
a) Degree of Organization
It is generally held that Article 3 GC I–IV requires a degree of organization on the

part of the insurgents.16 Their degree of organization is an indispensable prerequisite
to qualify the group as a party to the conflict. Only an armed group that proves to have
a certain degree of organization can be identified as a party to the conflict, and
therefore, be distinguished from the civilian population. If not, it is impossible to
perceive it as an actor different to that of the civilian population.17 The following
two aspects define the degree of organization.
(1) Capacity to Carry Out Operations Reaching the Threshold of Armed Conflict
First of all, the group must have the capacity to carry out military operations
against the opposing party. These operations must reach the threshold of a
non-international armed conflict, as explained in the aforementioned section.
14
Before Escobar’s promise of a reward, the former President of Colombia, Virgilio Barco,
declared a “total war against the drug trade” in his televised speech to the people of Colombia
on 25.08. 1989. He repeated his statement at the UN General Assembly on 29.09.1989.
15
IACiHR, Third Report on Colombia, 1999, Chap. I, } 25.
16
Melzer, Targeted Killing, p. 255, reminding in FN 67 that “[A] minimal organization has always
been considered a constitutive element for groups collectively participating in an armed conflict.
[. . .] See Article 4 A (2) GC III: ‘organised resistance movements’, Article 43 [1] AP I: ‘all
organised armed forces, groups and units’, Article 1 [1] AP II: ‘other organised armed groups’. See
also the unopposed statement of the Swiss delegate to the Diplomatic Conference of 1949 during
the 19th Plenary Meeting, requiring ‘some degree of organisation among the insurgents’ in a non-
international armed conflict (DC 1949, Final Record, Vol. II-B, p. 335).” Affirmative Moir, Internal
Armed Conflict, p. 36; IIHL, IHL and Other Legal Regimes, p. 5 ff; Abi-Saab, Non-international
Armed Conflicts, 225; Rona, Interesting Times for IHL, p. 60; Valencia, DIH, pp. 185, 220 ff.
17
Melzer, Targeted Killing, p. 254 ff; Rona, Interesting Times for IHL, p. 60.
Hence, it is required that the group has the capacity to carry out protracted armed
violence.
(2) Ability to Implement IHL

A group must have a minimum infrastructure that allows it to implement the
obligation under IHL.18 The group’s ability to implement IHL differs from the
practice of respecting humanitarian obligations. An ability to implement IHL is
required, but the implementation, as such, is not. Disrespect does not lead to IHL
being inapplicable. Two main reasons for this are given. IHL applies without the
condition of reciprocity.19 Moreover, in the Statute of the International Criminal
Court, serious violations of IHL committed during a non-international armed
conflict are considered to be war crimes.20 Accordingly, the statute supposes that
an infraction does not hinder a group from being a party to a non-international
armed conflict. Otherwise, a group could not be accused of violations.21
b) Alternative Criteria
The ICRC Commentary proposes alternative criteria for the distinction of groups
under Article 3 GC I–IV, and those of banditry, such as recognition as belligerents
and territorial control. Hereby the alternative criteria reflect definitions of the term
“armed conflict not of international character” that were suggested during the
drafting process of the 1949 Diplomatic Conference of Article 3 GC I–IV, but
were not accepted in the end.22 The different criteria indicate that a group has to be
18
Junod, Commentary AP II, Article 1, } 4470. Contrary to: Beres, State-sponsored Assassination,
p. 246.
19
Valencia, DIH, p. 224.
20
Article 8 } 2 lit. c and e.
21
See Sandoz, IHL in the 21th Century, pp. 15, 28.
22
Pictet, Commentary GC I, Art. 3, p. 49 ff. The proposals held, “(1) That the Party in revolt
against the de jure Government possesses an organized military force, an authority responsible for
its acts, acting within a determinate territory and having the means of respecting and ensuring
respect for the Convention. (2) That the legal Government is obliged to have recourse to the regular
military forces against insurgents organized as military and in possession of a part of the national
territory. (3) (a) That the de jure Government has recognized the insurgents as belligerents; or
(b) that it has claimed for itself the rights of a belligerent; or (c) that it has accorded the insurgents
recognition as belligerents for the purposes only of the present Convention; or (d) that the dispute
has been admitted to the agenda of the Security Council or the General Assembly of the United
Nations as being a threat to international peace, a breach of the peace, or an act of aggression.
(4) (a) That the insurgents have an organization purporting to have the characteristics of a State.
(b) That the insurgent civil authority exercises de facto authority over persons within a determinate
territory. (c) That the armed forces act under the direction of the organized civil authority and are
prepared to observe the ordinary laws or war. (d) That the insurgent civil authority agrees to be
bound by the provisions of the Convention.” Cf. Diplomatic Conference 1949, Final Record,
Vol. II-B, p. 121.
qualified as a party to the conflict (or organized armed group), and not as a group of
banditry, as they refer to cases where this is more obvious, e.g. when the government
has recognized the insurgents as belligerents, or when the latter has territorial control.
However, neither the formal recognition of a particular status,23 nor territorial control,
is required.24 Hence, these criteria can facilitate the identification of a party to the
armed conflict in the case that they are fulfilled. However, they do not constitute
requirements.25 If none of these criteria are met, the group’s degree of organization
must be the definitive requirement for its qualification as a party to the conflict.
c) Are the Armed Groups Required to Have a Political Goal?
The ICRC Commentary on AP II holds:

Insurgents fighting against the established order would normally seek to overthrow the
government in power or alternatively to bring about a secession so as to set up a new
State.26
This statement is given in order to describe a typical situation of non-international

armed conflict, but not to define a constitutive criterion of a party to the armed
conflict. Conversely, it seems that certain Colombian scholars require that a party to
the conflict have a political goal. Some experts hold that a group needs to have a
“counter-state” character in order to be recognized as a party to the conflict.27 Orozco
attempts to distinguish Colombian drug smugglers from organized armed groups by
arguing that the groups of smugglers are characterized as an enterprise whose goal it
23
Institute of International Law, Application of IHL, Session Berlin 1999, Resolution } 2; Moir,
Internal Armed Conflict, p. 40f. Affirmative Colombian Constitutional Court, Sentencia No.
C-291/2007, 25.04.2007, p. 57.
24
Melzer, Targeted Killing, p. 254; Moir, Internal Armed Conflict, p. 38; Rona, Interesting Times
for IHL, p. 62. Contrary to: Paust, No Need to Revise the Laws, p. 2, who does not provide any
argument in support of his view.
25
Pictet, Commentary GC I, Article 3, p. 50 clarifies this explicitly.
26
Junod, Commentary AP II, General Introduction, } 4341.
27
Claimants against the Ley 975 of 2005 before the Colombian Constitutional Court, Sentencia
No. C-575/2006, 25.07.2006, Chap. III. “La Demanda” } 3.2.39: “A juicio de los demandantes, la
disposición acusada al considerar el accionar de los grupos de autodefensas o paramilitares como
un delito polı́tico desconoce lo previsto en el Derecho Internacional Humanitario, en la medida en
que esos grupos no tienen el carácter ‘contraestatal’, por lo cual es imposible catalogarlos como
una parte autónoma en el conflicto y en consecuencia no se puede considerar que no son
fuerzas contrarias al Estado mismo despojándolos ası́ de la categorı́a de actores armados que les
corresponde según el Derecho Internacional Humanitario.” It is interesting to note that the Ley 418
of 1997, Article 8 provides a similar requirement, “organizaciones armadas al margen de la ley a
las cuales el Gobierno Nacional les reconozca el carácter polı́tico”. It has to be recalled that the law
was the basis for peace negotiations with such groups, i.e. actors to the conflict, when the
government recognized their political character. Thus, it cannot be interpreted that the law
presumed that a political character is required under Article 3 GC I–IV. Instead, the law itself
creates a new requirement since the legislators considered it to be necessary prior to starting peace
negotiations. Affirmative Colombian Constitutional Court, Sentencia No. C-048/2001,
24.01.2001.
is to provide an illegal good, such as cocaine.28 With regard to the hostile acts
committed by the drug smugglers and their “war,” he concludes that these acts cannot
be considered under IHL, since they do not aim to overthrow the state in an attempt to
establish definitive political-geographical domination.29 However, it is generally
agreed upon that the individual motives of organized armed groups are irrelevant,
and a political goal is not required.30 Therefore, other motives for the fighting, such as
financial revenues from drug trafficking, do not hinder the qualification of being a
party to the conflict.31
d) Can Parties to the Conflict Commit Acts of Terrorism?
An organized armed group might fulfil the criterion of degree of organization, but
one might question its status as a party to the conflict if the group is a terrorist
organization.32 A discussion about terrorism’s impact on IHL started in the
aftermath of 9/11, an attack on the twin towers in New York City, and on the
Pentagon in Washington D.C., carried out by members of Al Qaeda. The attack led
to a severe response by the US Government and many other countries. Certain
countries, such as the Russian Federation and Israel, claimed that they were also
confronted with terrorism on a daily basis. Some experts consider that governments
have constructed “rights-free zones,” at least on a short-term basis.33 Nonetheless,
it was never held that the measures taken by states to fight terrorism could derogate
from their obligations under IHL. This became clear inter alia in Article 15 of the
Inter-American Convention on Terrorism of 2 June 2002, ruling that anti-terrorist
measures shall take place with full respect for the rule of law, without affecting
obligations, in particular, under IHL and human rights law.34
28
Orozco, Combatientes, rebeldes y terroristas, p. 245: “El narcotráficante constituye, en principio,
una organización para suministrar ilegalmente un bien especı́fico como lo es la cocaı́na. A
diferencia del modelo organizacional de las guerrillas, que es eminentemente militar, el modele
organizacional del narcotráfico es simplemente empresarial”.
29
Orozco, Combatientes, rebeldes y terroristas, p. 249: “El narcotráfico urbano es [. . .] un proyecto
militar-estratégico de desestabilización parcial del régimen, y no a buscar el derrumbamiento
global del Estado. La guerra del narcotráfico no es verdadera guerra porque no procede según el
principio de violencia sino del terror, y porque no pretende establecer una dominación polı́tico-
espacial definitiva sino solo servirse de una dominación temporal del pensamiento – mediante el
miedo – como recurso de negociación”.
30
ICRC, Direct Participation in Hostilities – Summary Report III, p. 9 ff.
31
Cornell, Narcotics and Armed Conflict, p. 207 ff., holds that involvement in drug smuggling, as a
source of income, is of importance to insurgents groups when the armed conflict is of a long
duration.
32
This view seems to be suggested in certain Colombian literature, see, for example, Gaviria,
Sofisma del terrorismo, p. 48.
33
Fitzpatrick, War against Terrorism and Human Rights, p. 242. Similarly, International Commis-
sion of Jurists, Assessing Damage, Urging Action.
34
See also Article 4 of the International Convention for the Suppression of Acts of Nuclear
Terrorism, UNTS Registration No. I-44004.
(1) View of the US Government

After 9/11, the US Government claimed that IHL was inadequate in providing
answers to the “War on Terror.” Furthermore, it held that IHL had been changed
and developed by state practice, which led to new customary rules. These new rules
would concern different areas of IHL. Not all are of interest to this thesis; thus, the
view is only summarized concerning two aspects. First, President George W. Bush
and his administration considered that the “War on Terror” should qualify as a new
form of armed conflict that is neither regulated by Article 2 GC I–IV, since it was
not an inter-state war, but rather between non-state entities, nor under Article 3 GC
I–IV, since the non-state actors operated in a trans-national fashion, leading to a
global threat. Moreover, the fight is characterized by an important degree of
asymmetry between the parties to the conflict. Second, the Bush Administration
held that it was justified in exercising extraordinary powers and withholding all
defined protections to non-state entities.35 Subsequently, it created detention
facilities at Guantánamo and elsewhere where suspected terrorists have been held
and certain rights have been denied to them.
(2) Echoing the US Government’s View

The view on the existence of a new form of armed conflict has found support among
some experts who have recognised a need for it. However, it has not been recognized
that new customary rules of a new form of armed conflict have already been
created.36 Also, the US Supreme Court has rejected the existence of a new form of
armed conflict and has qualified the operations against Al Qaeda as an armed conflict
not of international character under Article 3 GC I–IV.37
Moreover, the unclear protection of non-state entities has not found any support
among the international community. It has not recognised that there could be a need
for the creation of new customary rules.38 It is argued that terrorism does not
represent a new phenomenon and that different provisions of IHL already take it
into account; in particular, by protecting civilian populations and civilian objects.
35
US Department of Justice, Memorandum by the Office of Legal Counsel of the US Department
of Justice, 09.01.2002. See also: Fitzpatrick, War against Terrorism and Human Rights, p. 249;
Vierucci, Is the Geneva Convention on Prisoners of War Obsolete? p. 866 ff.
36
Gross, Thwarting Terrorist Acts, p. 195 ff. Contrary to: Rona, Interesting Times for IHL, p. 55 ff,
who does not recognize the need to define a new form of armed conflict.
37
US-Supreme Court, Hamdan v. Rumsfeld, No. 548 US (2006), Decision 29.06.2006, p. 62 ff.
Affirmative: Melzer, Targeted Killing, p. 262 ff.
38
Downes, Targeted Killings, p. 277 ff; Fitzpatrick, War Against Terrorism and Human Rights,
p. 241 ff; Gasser, “Terrorism”, IHL, p. 547 ff; Hoffman, Human Rights and Terrorism, p. 932 ff;
Kremnitzer, Präventives Töten, p. 201 ff; Melzer, Targeted Killing, p. 262 ff; Murphy, International
Law, War against Terrorism, p. 347 ff; Neumann, Humanitarian Law, p. 283 ff; Rona, Interesting
Times for IHL, p. 55 ff; Vierucci, Is the Geneva Convention on Prisoners of War Obsolete? p. 866 ff;
Watkin, Canada/US Military Interoperability and Humanitarian Law Issues, p. 291 ff.
Moreover, only certain persons, namely combatants, have the right to participate in
hostilities. Finally, the methods or means of warfare are not unlimited.39
In addition to the rejection by most scholars of the Bush Administration’s claim,
there is no evidence that the international community, even states who cooperated
militarily and diplomatically in the “War on Terror,” share the Bush Administration’s
view on new customary rules.40 Instead, international organizations, such as the
United Nations and the Organization of American States, have strongly criticized
certain practices concerning the detainees at Guantánamo Bay.41 Also, the US
Supreme Court ruled that the government has to take corrective measures in its
treatment of detainees.42 Finally, the recently elected US President Barack Obama
has shown evidence that his administration will pursue a different approach. On 22
January 2009, he provided an executive order to close the detention facility at
Guantánamo,43 and to ensure lawful interrogations of all detainees.44
(3) Summary
Given the lack of support in the literature and within the international community,
in addition to the US Supreme Court’s opposing view, it is hard to agree with the
position of former US President George W. Bush. Instead, it should be noted that
Barack Obama’s administration has taken corrective measures. With regard to the
Colombian case, it is even harder to apply the view that customary law has changed
in this way. There is no doubt that the character of the Colombian armed conflict is
non-international. Therefore, there is no gray area in which one can assume that a
third kind of conflict is taking place.
Accordingly, if the threshold of an armed conflict is reached,45 and an organized
armed group meets the requirements of a certain degree of organization, it has to be
considered as a party to a conflict, regardless of its possible use of terrorist acts. It
was previously analyzed that Article 3 GC I–IV requires that a group have the ability
to implement IHL. Disrespecting IHL does not matter, and consequently, parties to
the conflict can use acts of terrorism without leading to a negation of the group’s
status. Further considerations underline this view; states can also carry out or order
illegitimate acts of terror.46 However, it has never been denied that, in such a case,
39
Gasser, “Terrorism”, IHL, pp. 547 ff, 568 ff.
40
Fitzpatrick, War against Terrorism and Human Rights, p. 249.
41
UN-HR Commission, Situation of Detainees at Guantánamo; IACiHR, Report on Terrorism and
Human Rights, }} 32 ff; Resolution No 2/06 On Guantanamo Bay, 28.07.2006. See also,
Tittemore, Guantanamo Bay and the Precautionary Measures of the IACiHR, p. 378 ff.
42
US Supreme Court, Hamdan v. Rumsfeld, No. 548 US (2006), Decision 29.06.2006, Boumediene
et al. v. Bush, No. 553 US (2008), Decision 12.06.2008.
43
US President, Executive Order, Closure of Guantánamo Detention Facilities, 22.01.2009.
44
US President, Executive Order, Ensuring Lawful Interrogations, 22.01.2009.
45
If the threshold of an armed conflict is not reached, IHL does not apply, but rather the
international law of human rights.
46
Watkin, Use of Force, p. 7.
the state would lose its position as a party to the conflict.47 So, why should this be the
case for non-state actors if they commit acts of terror? Finally, the criteria of
“terrorism” and “act of terror” could be applied arbitrarily, according to a state’s
whim, as definitions of these terms are yet established under international law.
Article 2.1 lit. b of the International Convention for the Suppression of the Financing
of Terrorism provides a definition of the term.48 However, this definition pertains
only to the respective convention and does not serve as an example for a general
definition as it has not been copied in other, recent treaties dealing with terrorism.
3. Non-State Parties to the Colombian Armed Conflict
In Colombia, there are various non-state armed groups. They have been traditionally
divided into those belonging to the guerrilla movements, and those belonging to
paramilitaries. As analyzed in the previous section, to qualify as a party to the armed
conflict rather than to one of ordinary crime, a minimum degree of organization
is required. The group must have the capacity to carry out protracted military
operations, and to apply their obligations under IHL.
a) Guerrilla Movements
Various guerrilla groups operate in Colombia. The Fuerzas Armadas Revolucionarias

de Colombia – Eje´rcito del Pueblo (FARC-EP) and the Eje´rcito de Liberación
Nacional (ELN) are the two main groups, FARC being the elder of the two.49
(1) FARC-EP
There are no confirmed figures about the number of fighters belonging to FARC. It is
estimated that, until recent years, there were between 12,000 and 15,000 fighters.
However, it is said that the group has recently experienced significant losses, and that
47
The Bush Administration once decided against recognizing the GC’s applicability to the Taliban,
arguing that Afghanistan was a “failed state,” and the Taliban did not represent the state’s
government, but rather a terrorist organization; see Vierucci, Is the Geneva Convention on
Prisoners of War Obsolete? p. 867 ff.
48
International Convention for the Suppression of the Financing of Terrorism, UNTS Registration
No. I-38349, Article 2.1 lit. b) provides a definition of terrorism: “Any other act intended to cause
death or serious bodily injury to a civilian, or to any other person not taking an active part in the
hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is
to intimidate a population, or to compel a government or an international organization to do or to
abstain from doing any act.”
49
There are other small guerrilla groups in Colombia, such as Ejército Popular de Liberación,
Ejército Revolucionario Guevarista, Ejército Revolucionario del Pueblo, and the Jaime Bateman
Cayón. Because they are of little importance, and since the author does not attempt to analyze all
of the details of the situation, only the two most important guerrilla groups will be discussed.
Regarding the very weak influence of the other groups, cf. Lair, El terror, recurso estratégico de los
actores armados, p. 140. Affirmative Villaraga, Conflicto armado y derecho humanitario en
Colombia, p. 262 ff.
there might now be only about 8,000 members.50 The group is accused of being deeply
involved in the drug trade,51 and of committing terrorist acts.52 Neither ties to the drug
trade nor to terrorist acts hinder a qualification as a party to the conflict, as has been
previously analyzed.53 Rather, the FARC demonstrates a high degree of organization,
which has allowed it to carry out operations against state forces. Until recent years, it
has proved to have the capacity to carry out military operations that are not considered
to be of low intensity.54 It is suspected that its military capacity has been weakened in
recent years, but it is still assumed to have a certain level of capacity. Moreover, it
shows a strong hierarchical structure, with the General Secretary as the leader, and
“blocs” and “fronts” at the lower end of the hierarchy. The group also has its own code
of conduct. All this leads to its (objective) ability to fulfil the obligations under IHL.
Accordingly, the requirements under Article 3 GC I–IV are met.55 Colombian
Courts56 and the Colombian High Commissioner for Peace agree on this.57
50
ICG, Making Military Progress Pay Off, p. 8 ff; Fundación Seguridad y Democracia, Balance de
la confrontación armada, p. 5 ff.
51
IACiHR, Third Report on Colombia, 1999, Chap. I, } 25
52
Lair, El terror, recurso estratégico de los actors armados, p. 145 ff.
53
Contrary to: Gaviria, Sofisma del Terrorismo, p. 48. He argues with the president’s statement at
the IACtHR in San José on 19.06.2003, “No se puede dar legitimidad a una oposición armada! No
se puede reconocer en esa falsa oposición la calidad de combatiente, cuando su financiación
principal es la droga y su segunda financiación es la mas repugnante conducta contra la libertad
humana: el secuestro!” The failure of this argumentation is that it suggests that a legitimate
political goal is required.
54
Villaraga, Conflicto armado y derecho humanitario en Colombia, p. 270. Still, in recent years,
the FARC carried out a series of attacks against military installations.
55
IACiHR, Third Report on Colombia, 1999, Chap. I }} 27 ff; UNHCHR, Annual Report on
Human Rights in Colombia, 2006, p. 4; Villaraga, Conflicto Armado y derecho humanitario en
Colombia, p. 259 ff; Comisión Colombiana de Juristas, Violaciones al DIH, p. 281 ff; Valencia,
Derecho humanitario para Colombia, p. 125; and Valencia, DIH, p. 221 ff.
56
In various decisions, the Colombian Constitutional Court assumes that the FARC-EP is an
organized armed without providing the arguments. E.g. Sentencia No. C-802/2002, 02.10.2002,
Chap. E. “Examen de requisitos de fondo”. Affirmative, Colombian Council of State, sentence
06.09.2001, Radicación número: 11001-03-24-000-1999-5802-01(5802); sentence 06.02.1997,
Radicación número: 11369; sentence 19.08.2004, Radicación número: 05001-23-31-000-2004-
4164-01(AC); sentence 26.01.2006, Radicación número: 25000-23-26-000-2001-00213-01(AG)
B; sentence 15.08.2007 Radicación número: 25000-23-27-000-2002-00004-01(AG).
57
According to the so-called “Ley de Justicia y Paz” (Ley 795 de 2005), members of organized armed
groups are encouraged to demobilize. An armed group is defined in Article 1: “Se entiende por grupo
armado organizado al margen de la ley, el grupo de guerrilla o de autodefensas, o una parte
significativa e integral de los mismos como bloques, frentes u otras modalidades de esas mismas
organizaciones, de las que trate la Ley 782 de 2002”. Ley 782 of 2002, Article 8 paragraph 1 rules: “De
conformidad con las normas del Derecho Internacional Humanitario, y para los efectos de la presente
ley, se entiende por grupo armado al margen de la ley, aquel que, bajo la dirección de un mando
responsable, ejerza sobre una parte del territorio un control tal que le permita realizar operaciones
militares sostenidas y concertadas”. Hence, it applies to members of organized armed groups under AP
II. According to the Decree 2898 of 2006, the High Commissioner for Peace submits the names of the
concerned persons to the prosecutor’s office, and has done so with certain members of the FARC.
(2) ELN
No confirmed figures about the number of fighters within the ELN exist. It is
estimated that it has decreased from 4,500 armed men, to between 2,200 and
3,000 in recent years.58 Currently, military operations are not carried out as
extensively in an area or with the same intensity as a few years ago. Within the
group, there is a high enough degree of organization to allow it to carry out military
operations.59 It is hierarchical, with the Comando Central as the commanding force,
and the “fronts of war” and “fronts” at the inferior levels. The group also has a
unique code of conduct. All of this provides the ELN with the ability to fulfil the
obligations under IHL. Hence, the requirements under Article 3 GC I–IV are met.60
Moreover, Colombian courts61 and the Colombian High Commissioner for Peace
confirm this.62
b) Paramilitary Groups
Traditionally, the paramilitary groups were organized on a regional level. It was

only in 1997 that they became organized on national level under the auspices of
“Autodefensas Unidas de Colombia” (AUC). However, it seems that the national
structure did not represent a military hierarchy that included a chain of command.
The chain of command belonged to different blocks that were organized at a lower
level of the AUC.63 The paramilitary groups were often accused of committing
severe violations against the civilian population, including massacres, disappear-
ances, and “cleansing” processes.64 In 2003, the AUC started peace negotiations
58
Lair, El terror, recurso estratégico de los actores armados, p. 141. ICG, Moving Forward with the
ELN?, p. 2; Fundación Seguridad y Democracia, Balance de la confrontación armada en Colombia
2002–2008, p. 8 ff.
59
E.g. Table of events available at http://www.eln-voces.com [last visit 16.07.2009]; ICG, Moving
Forward with the ELN? p. 2 ff.
60
IACiHR, Third Report on Colombia, 1999, chapter I }} 36 ff; UNHCHR, Annual Report on
Human Rights in Colombia, 2006, p. 4; Villaraga, Conflicto Armado y derecho humanitario en
Colombia, p. 259 ff; Comisión Colombiana de Juristas, Violaciones al DIH, p. 281 ff; Valencia,
Derecho humanitario para Colombia, p. 125 and Valencia, DIH, pp. 221 ff.
61
The Colombian Constitutional Court has held in various decisions that the ELN is an organized
armed group, although it does not provide supporting arguments. E.g. Sentencia No. C-802/2002,
02.10.2002, chapter E. “Examen de requisitos de fondo”. Affirmtative Consejo de Estado,
sentence 04.10.2007, Radicación número: 05001-23-31-000-1991-00789-01(15567); sentence
26.01.2006, Radicación número: 25000-23-26-000-2001-00213-01(AG)B; sentence 12.04.2004
Radicación número: 68001-23-15-000-1994-08908-01(13952); sentence 21.06.2007 Radicación
número: 25000-23-26-000-2000-01615-01(25627); sentence 15.08.2007 Radicación número:
25000-23-27-000-2002-00004-01(AG).
62
The High Commissioner for Peace, according to Decree 2898 of 2006, submitted a number of
names of members of the ELN to the Prosecutor’s Office, in order for them to be considered in
regards to the application of the so-called “Ley de Justicia y Paz”.
63
ICG, Colombia’s New Armed Groups, p. 3.
64
IACiHR, Third Report on Colombia, 1999, Chap. I }} 18 ff.
with the government, which led to different agreements and the AUC’s demobiliza-
tion.65 Colombian courts, as well as the Colombian High Commissioner for Peace,
have confirmed that the different paramilitary groups were organized armed groups
according to Article 3 GC I–IV and Article 1 AP II.66
A short time after the demobilization, new groups emerged. Many of them are
called paramilitary groups since it is argued that the newly emerged groups are mainly
composed of former members of the demobilized paramilitaries, and operations
frequently target the civilian population.67 Conversely, this does not mean that
these so-called new groups can automatically be considered organized armed groups,
i.e. parties to the conflict.68 Instead, it must be assessed whether they meet the
requirements under Article 3 GC I–IV, i.e. a minimum degree of organization
that allows protracted military violence to be carried out and to apply the obligations
under IHL. If they do not meet this requirement, they have to be defined as ordinary
criminal gangs.
Some of these groups are called Black Eagle (Aguila Negra), New Generation
Organization (Organización Nueva Generación) and Autodefensas Gaitanistas de
Colombia. However, it does not seem that there is always a link between them, but
rather that they are independent and operate in different regions. They have close
ties to criminal activities, such as drug trafficking, petrol smuggling and extortion.69
It does not seem that most of the so-called “new groups” are involved in fighting
against guerrilla groups. The Colombian government calls them “emerging gangs”
(“bandas emergentes”) or simply “criminal gangs” (“bandas criminales”). It per-
ceives them as criminals, and deals with them accordingly; the police and the army
65
In particular “Acuerdo de Santa Fe”, 15.07.2003, available at http://www.altocomisionadopar-
alapaz.gov.co/acuerdos/acuerdos_t/jul_15_03.htm [last visit 15.07.2009]. Cf. also IACiHR,
Informe sobre la implementación de la ley de Justicia y Paz, p. 1 and Annual Report 2007,
Chap. IV }} 16 ff.
66
In various decisions, the Colombian Constitutional Court has assumed that the blocks of the
AUC are organized armed groups without providing their arguments. E.g. Sentencia No C-802/
2002, 02.10.2002, Chap. E. “Examen de requisitos de fondo”. Affirmative IACiHR, Third Report
on Colombia, 1999, chapter I }} 43 ff and Annual Report 2007, Chap. IV } 16. Contrary to certain
Colombian experts, who deny the paramilitary groups the status of an organized armed group
argue that these groups are not of a “counter-state” character and do not aim to take over state-
power. (E.g. Claimants against the Ley 975 of 2005 before Constitutional Court, Sentencia No.
C-575/2006, 25.07.2006, Chap. III. “La Demanda” } 3.2.39). As stated in the aforementioned
chapter, this requirement does not exist under IHL. Moreover, the High Commissioner for Peace,
according to Decree 2898 of 2006, submitted a number of names of members of the different blocs
belonging to the AUC to the prosecutor’s office, in order for them to be considered in regards to the
application of the so-called “Ley de Justicia y Paz”.
67
Accordingly, they are called “paramilitaries of third generation” by certain experts. Cf.
Comisión Nacional de Reparación y Reconciliación, Informe No. 1: ¿Bandas criminales o Tercera
Generación Paramilitar?; ICG, Colombia’s New Armed Groups; IACiHR, Annual Report 2007,
Chap. IV }} 36 ff; Coljuristas, Neoparamilitarismo y nuevas masacres, p. 1; MAPP/OAS, 12th
Quarterly Report, p. 5.
68
MAPP/OAS, 12th Quarterly Report, p. 1 ff.
69
ICG, Colombia’s New Armed Groups, p. 1 ff.
prosecute them. It is commonly estimated that the public forces’ operations against
the new groups are of a low degree of violence, but this might be questioned given
the large number of members of the “emerging groups” who are killed by public
forces during these operations.70 A few of the “new groups” do carry out military
operations, mostly against the FARC, and in some operations, they even work
together with the ELN or public forces.71 However, it is unclear how far their
degree of organization goes in providing the concerned groups with their ability to
fulfil the obligations under IHL.
Due to the diversity of the new groups, they must be individually assessed
to determine if they constitute an organized armed group. Currently, no clear
qualification has been published,72 nor have they been qualified by the courts (so
far, the provisions under IHL or Ley 782 of 2002 and Ley 975 de 2005 have not
been applied to them in any cases). Moreover, at this stage, a qualification would be
of very limited value. The emerging new groups are in the phase of being
established. This means that a group rapidly appears, vanishes, or is overtaken
(by force or consensus) by another group. Hence, one group might exist today, but
not (in the same form) tomorrow. The fact that most of the “new groups” do not
carry out military operations today does not mean that they will do so in the future.
This is particularly important because the public forces might not be able to control
the new groups, which implies a risk that the “new groups” will become a new party
to the conflict. Because of this dynamic, it is hard to establish a qualification that is
valid long-term.73 For this reason, the new groups will not be qualified finally in this
analysis, and it is only concluded that some of them might be qualified as groups
of organized crime (in particular those that do not fight against the guerrillas),
while others, either now or in the future, may qualify as organized armed groups
according to Article 3 GC I–IV.
70
In officially reported statistics, 613 members of the new groups were killed and 2,117 were
captured by public force during operations against them in 2007, and 380 were killed and 2,108
captured in 2008. Source: Colombian Ministry of Defence, Logros de la polı́tica de seguridad
democratica - Cifras preliminares 2008, p. 53 ff.
71
ICG, Colombia’s New Armed Groups, p. i holds: “Some of these groups, such as the New
Generation Organization (Organización Nueva Generación, ONG) in Nariño have started to operate
much like the old AUC bloc in the region, including counter-insurgency operations and efforts to
control territory and population so as to dominate the drug trade.”; cf. also pp. 1, 6 and 12 ff.
72
In its 2006 Annual Report on Human Rights in Colombia, p. 4, the UNHCHR attributes
violations of IHL to the new groups. Moreover, in its Annual Report on Human Rights in
Colombia, 2007, p. 13 ff, it is held that: “[t]hese groups are heavily armed, have a military
organization and responsible leaders, and have the capacity to control territory and to conduct
military operations against other armed actors. They represent an active factor in intensifying the
armed conflict, with direct and serious consequences for the civilian population”. In its Annual
Report on Human Rights in Colombia, 2007, p. 12 ff, it is more distinguished between these
different groups.
73
Comisión Nacional de Reparación y Reconciliación, Informe No. 1: ¿Bandas criminales o
Tercera Generación Paramilitar?, pp. 8, 32.
c) Organized Criminal Groups, Namely Drug Smugglers
In the 1980s and 1990s, two important groups (the Medellin Cartel, spearheaded by
Pablo Escobar Gaviria, and the Cali Cartel, controlled by brothers Gilberto and
Miguel Rodrı́guez Orejuela) controlled drug smuggling in Colombia. These groups
were dismantled in the 1990s, and since then, no important group has been able to
establish the same power and capacity as had been enjoyed by the cartels. Instead,
smaller groups have been established, which are sometimes called “baby cartels.”74
These “baby cartels” do not intend to control the whole chain of smuggling, but
instead are specialized entities that use a businesslike approach.75
The drug smugglers’ capacity for violence cannot be considered to reach the
threshold of protracted armed violence. Hence, they are not parties to the conflict.
However, they do have ties to organized armed groups in Colombia.76 Drug
smuggling is an important source of income to these organized armed groups.
They tax the production, purchase of coca paste or base, and landing strips used
by the small planes that deliver chemicals and take away cocaine. Over the last
decade, the two large cartels have disappeared, and the organized armed groups
have become increasingly involved in refining and trafficking.77 Trafficking is,
obviously, much more lucrative and interesting to the groups.
II. Criteria under Article 1 AP II
Simultaneously to the provisions under Article 3 GC I–IV, AP II might be

applicable.
Article 1.1 AP II rules:
This Protocol, which develops and supplements Article 3 common to the Geneva Conven-
tions [. . .] without modifying its existing conditions of application, shall apply to all armed
conflicts which are not covered by Article 1 of the [. . .] (Protocol I) and which take place in
the territory of a High Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol.
The article adds some objective criteria to Article 3 GC I–IV. Consequently, its
field of application is narrower than Article 3 GC I–IV.78 This means that in
74
Experts also speak about the fourth generation of narcotraffickers. The first was the marijuana
smugglers; the second and third, the Medellin and Cali Cartels, respectively; ICG, War and Drugs,
p. 16.
75
ICG, War and Drugs, p. 16.
76
According to ICG, War and Drugs, pp. 8 ff, 13 ff, 17 ff the FARC and AUC (including new
groups) are concerned; the ELN is only marginally involved.
77
ICG, War and Drugs, pp. 1, 8, 14 ff.
78
Bothe, New Rules for Victims of Armed Conflicts, p. 604 ff.
circumstances under which the conditions of the Protocol are met, the Protocol and
Article 3 GC I–IV both apply. Article 3 GC I–IV retains an autonomous existence in
a conflict where the level of violence is low. If the conflict does not contain the
characteristic features that are required by the Protocol, only Article 3 GC I–IV
applies.79 This is often the case at the beginning of an armed conflict. In the later
stages of conflict, the conflict’s intensity can increase, and the requirements under
Article 1 AP II can be met.
The supplementary objective criteria under AP II are that the “dissident armed
forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol”.80
Hereafter, whether the criteria are met in the Colombian case is analyzed.
1. The Responsible Command
The existence of a responsible command implies some degree of organization of the

dissident armed forces. This does not require a hierarchical system of military
organization similar to that of regular armed forces. It means that an organization
must be capable of planning and carrying out military operations, as well as
imposing discipline in the name of a de facto authority.81
In addition to the degree of organization of the FARC and ELN, as explained in
the previous section, it should be pointed out that there are mind maps that explain
the structures.82 Furthermore, the groups possess a strong disciplinary system with
the ability to (strongly) punish abuses. Hence, the view that both groups meet the
criterion is generally agreed upon.83
79
Junod, Commentary AP II, Article 1, } 4457.
80
Junod, Commentary AP II, Article 1, } 4453; Colombian Constitutional Court, Sentencia No.
C-225/1995, 18.05.1995, p. 52.
81
82
There are publications available on the groups’ websites, as well as the Colombian Human
Rights Office of the President. They are available at http://www.derechoshumanos.gov.co [last
visit 15.07.2009].
83
Colombian Constitutional Court, Sentencia No. C-225/1995, 18.05.1995. Affirmative the
different interventions made during the audiences of the Court; Valencia, DIH, p. 221 ff. Contrary
to: Gaviria, Sofisma del Terrorismo, p. 43 ff, who denies the existence of a responsible command
since the 1990s, arguing that the groups are isolated due to the failure of Soviet-style communism,
the death of certain leaders, and the distance taken by intellectuals regarding an armed struggle.
His arguments concern a loss of political support that hardly can be equated with a loss of
responsible (military) command.
2. Control Over Part of a Territory
It is not specified if relatively weak control of a territory is sufficient, or if it must be

substantial. The word “such” in Article 1 AP II provides the key to the interpretation.
The control must be sufficient enough to carry out military operations and to apply the
Protocol, i.e., caring for the wounded and sick, detaining prisoners, and treating them
decently.84
The government’s current policy aims to regain security and the territorial
control of the country.85 This indicates that FARC and ELN have certain territorial
control. Moreover, they carry out military actions.86 They are able to provide
wounded and sick fighters with medical care and to detain prisoners for long periods
of time.87 All this shows that the armed groups comply with this requirement.88
3. The Sustained and Concerted Character of Military Operations
“Sustained” means that the operations are continuous. This becomes clearer in the
French version: ope´rations continues. “Concerted” means agreed upon, planned
and contrived, and executed in agreement and according to a plan. At the beginning
of an armed conflict, the military operations rarely have a sustained and concerted
character. Thus, it is often concluded that at this stage, it is likely that only Article 3
GC I–IV applies, and AP II does not.89 The same can be concluded about the final
stage of an armed conflict, where one party is considerably weakened, and can no
longer carry out its military operation in such a way.
84
Junod, Commentary AP II, } 4466; Colombian Constitutional Court, Sentencia No. C-225/1995,
18.05.1995, p. 52; Valencia, Derecho humanitario para Colombia, p. 123; and Valencia, DIH,
p. 217 ff.
85
President of the Republic of Colombia/Ministry of Defence, Polı́tica de Defensa y Seguridad
Democrática (2003), p. 15: “La primera condición para cumplir con el objetivo de fortalecer el
Estado de Derecho es la consolidación gradual del control estatal sobre la totalidad del territorio”.
Affirmative Colombian Ministry of Defence, Logros de la seguridad democratica – Cifras
preliminares 2008, p. 3, where, as the top policy objective is held, “Consolidar el control territorial
y restablecer la autoridad del Estado en todo el territorio nacional”. Gaviria, Sofisma del
Terrorismo, p. 45 ff, denies the fulfillment of this criterion, arguing that the members of the
armed group do not control a territory, but hide in the Colombian jungle. In this regard, he
misconceives the criterion of “control over the territory,” that must be such in order to allow
military operations to be carried out and IHL to apply.
86
Villaraga, Conflicto armado y derecho humanitario en Colombia, p. 270; Valencia, Derecho
humanitario para Colombia, p. 124.
87
Some prisoners (and some civilian hostages) have been held captive by the armed groups for
more than 10 years.
88
Colombian Constitutional Court, Sentencia No. C-225/1995, 18.05.1995 and the different
interventions; Valencia, DIH, p. 219 ff.
89
The various organized armed groups and the government regularly publish their
numerous military operations against the guerrilla groups.90 The guerrilla groups
carry out military operations on a frequent basis. They are planned out.91 This leads
to the conclusion by many that FARC and ELN meet the requirement.92 Con-
versely, if one party to the conflict becomes considerably weakened in the future, in
such a way that it still has the capacity to carry out protracted military operations,
Article 3 GC I–IV would apply.93 However, AP II would not apply if the operations
were not of a sustained and concerted character. If an actual party, sometime in the
future, splits into several fractions that are no longer under the same responsible
command, the respective requirements must be assessed for each of the fractions.
This can lead to a similar conclusion as the one that was reached for the new
paramilitary groups: while certain groups might be considered to be parties to the
conflict under Article 3 GC I–IV (or even Article 1.1 AP I), others may not, and may
only be groups of ordinary crimes.
With regard to the so-called new groups, it was concluded in the previous section
that some of them might be defined under Article 3 GC I–IV. However, this does
not mean that AP II applies automatically. Their qualification under AP II must be
doubted since they are a new group with limited experience in military operations.
4. Military Operations Against Governmental Armed Forces
The Protocol applies to governmental armed forces and to dissident armed forces,
or organized armed groups.94 In cases of military confrontation between two
non-state parties, AP II does not apply; Article 3 GC I–IV does instead.95 For
example, in military confrontations between FARC and Colombian armed forces,
AP II applies together with Article 3 GC I–IV, while in confrontations between
FARC and ELN only Article 3 GC I–IV applies.
90
Bitácora Semanal de Prensa de la Vicepresidencia, available at http://www.derechoshumanos.
gov.co [last visit 15.07.2009].
91
Colombian Constitutional Court, Sentencia No. C-225/95, 18.05.1995 and the different
interventions; Valencia, DIH, p. 222 ff.
92
Contrary to: Nieto, Delito polı́tico y DIH en Colombia, p. 371 arguing that: “En Colombia
todavı́a no hemos llegado, a pesar de los altı́simo niveles de violencia que nos asuelan, a la
situación bélica que el derecho internacional denomina como guerra civil.”
93
In the case that a group no longer meets the requirements of a certain degree of organization
under Article 3 GC I–IV, it can no longer be considered to be a party to the conflict.
94
Junod, Commentary AP II, Article 1, }} 4460 ff.
95
AP II can apply, in the case of a special agreement between the two organized armed groups.
Regarding a more recent development, cf. Melzer, Targeted Killing – Dissertation, FN 1358.
5. The Ability to Implement the Protocol
The criterion to have the ability to implement the obligations under IHL that
already exist under Article 3 GC I–IV, as explained in Section I.2.a(2), “Ability
to Implement IHL”.
As has been previously assessed, the different armed groups in Colombia are
under a responsible command. The latter imposes strong discipline and control over
its members. This allows them to implement the rules of the Protocol.96
III. Summary
In Colombia, there is an armed conflict not of international character according to

Article 3 GC I–IV. The objective criteria under Article 1 AP II are also fulfilled,
because the different armed groups are under responsible command, and exercise
control over a part of the territory in order to enable them to carry out sustained and
concerted military operations and to implement this Protocol. Colombian courts,
namely the Constitutional Court, the Inter-American Court, and the Commission on
Human Rights confirmed this in an important number of decisions. Non-state
parties to the conflict include the FARC and ELN. At the current stage of the
conflict, the so-called new groups are difficult to define as such, since they only
recently emerged after the demobilization of the former paramilitary groups.
B. The Term “Armed Forces” in IHL and the National Police of

Colombia
In the previous section, it was concluded that there is a non-international armed

conflict in Colombia and certain non-state organized armed groups were defined as
parties to the conflict. The National Police of Colombia can also be party to the
conflict if it can be considered to be part of the armed forces under Article 3 GC I–IV
and Article 1 AP II. In order to do so, its role and functions have to be assessed.
The Ministry of National Defence is responsible for the police (together with the
armed forces).97 Both fall within the jurisdiction of the Military Penal Justice.
Nevertheless, the police are a body of a civilian nature.98
96
Valencia, Derecho humanitario para Colombia, p. 125; Valencia, DIH, p. 223 ff.
97
The functions of the armed forces are defined in Article 217 of the Colombian Constitution, “The
nation will maintain for its defense permanent military forces made up of the army, navy, and air
force. The armed forces will have as their primary purpose the defense of the sovereignty,
independence, and integrity of the national territory and of the constitutional order”.
98
The police’s civilian nature seems to be problematic in terms of domestic constitutional law if, at
the same time, it participated in hostilities of the Colombian armed conflict. See, for
example, IACiHR, Third Report on Colombia, 1999, Chap. III, }} 63 ff. Contrary to: Colombian
Constitutional Court, Sentencia No. C-453/1994, 20.10.1994; Sentencia No. C-444/1995, 04.10.1995.
B. The Term “Armed Forces” in IHL and the National Police of Colombia 27
The role of the National Police is named in the Colombian Constitution in

Article 216.1:
The public force will consist of the armed forces and the national police exclusively.
And in Article 218.2:

The national police are a permanent armed body of a civilian nature, upheld by the nation,
and whose primary purpose is the maintenance of the conditions necessary for the exercise
of public rights and freedoms and to ensure that the inhabitants of Colombia may live
together in peace.
The Colombian police carry out different tasks, from the most civil duties, such
as the protection of children and adolescents, women and the elderly, to the
protection of fauna and flora, tourists, and disaster relief; to the most belligerent,
military duties, such as counter-drug and counter-subversive operations. Thus, the
police realize military operations either by itself or together in mixed units with the
National Army. There are cases where the civil and military hybrid is combined
completely to fulfil the missions. For example, the Police of Transit and Transport’s
function is to provide check-ups, education, and prevention, and it is responsible for
responding to accidents both in towns and on urban and rural roads. Nonetheless, it
sometimes has to act militarily, using heavy weaponry against guerrilla groups that
try to set fire to vehicles, or to block or to destroy transit infrastructure (such as
bridges and viaducts), in particular on rural highways. It is interesting to note that
part of the police is like the National Army regarding both armament and training
(even though each has its specific abilities and roles). The police patrol the
country’s airspace in armed planes and helicopters, such as Black Hawks, which
are equipped with machine guns and missiles in case of counter attacks by the
guerrilla movement, as well as equipment to fumigate coca and poppy plantations.
Its command ranks are equal to the military’s, from Second Lieutenant to General,
Second Corporal to Major Sergeant, and Patrolman to Commissary.99
This statement shows that the police force is involved in military operations. In
order to qualify them as a party to the conflict, Article 3 GC I–IV and Article 1 AP II
require that the armed conflict takes place between the armed forces of the High
Contracting Party and organized armed groups. Regarding the term “armed forces,”
the ICRC Commentary holds as follows:
The term “armed forces” of the High Contracting Party should be understood in the
broadest sense. In fact, this term was chosen in preference to others suggested such as,
for example, “regular armed forces”, in order to cover all the armed forces, including those
not included in the definition of the army in the national legislation of some countries
(national guard, customs, police forces or any other similar force).100
99
http://www.policia.gov.co [last visit 16.07.2009].
Junod, Commentary AP II, Article 1, } 4462. Similar Moir, Internal Armed Conflict, p. 99 ff.
100
The commentary provides certain room for interpretation. It is certainly true

that an extensive interpretation can be appropriate. However, each and every
governmental structure that is equipped with weapons cannot automatically be
considered “armed forces” under Article 1 AP II. Instead, the particular circum-
stances have to be taken into consideration, in particular, whether the governmental
unit in question participates de facto in hostilities. Hence, in order to consider the
Colombian police a party to the conflict, their role and functions have to indicate
that it does indeed participate in hostilities.
In a number of cases, the Colombian Constitutional Court has ruled about the
functions of the Colombian police. It did not automatically qualify them as party to
the conflict. Instead, the court observed its functions in further detail, and recog-
nised that it is involved in operations of both a civilian and military character.101
Accordingly, they act in a “borderline situation”, for example, when the police are
engaged in military operations when a guerrilla group attacks the police, but also
when they carry out operations with the aim of fighting against the guerrillas or
other organized armed groups. The Constitutional Court recognized that sections of
the police are trained to operate directly in hostilities. In these particular cases of
involvement in the hostilities, the court qualified the police as a party to the conflict,
according to Article 3 GC I–IV and Article 1 AP II.102 Other Colombian courts
confirmed this view.103 The National Police of Colombia assumes that IHL is
applicable to its forces, and therefore provides training on IHL to its agents.
101
Colombian Constitutional Court, Sentencia No. C-453/1994, 20.10.1994, Chap. 2.3. “Dificul-
tades derivadas de las condiciones fácticas”: “la Policı́a Nacional también está capacitada para
participar en este tipo de lucha por medio de cuerpos especiales (Cuerpo élite) o de unidades de
contraguerrilla. Estas circunstancias han determinado la existencia de una especie de ‘zona gris’ o
‘fronteriza’ en la cual se superponen los criterios de seguridad y defensa.” Affirmative Sentencia
No. C-444/1995, 04.10.1995.
102
The Colombian Constitutional Court subsequently applied IHL governing a non-international
conflict to military operations of the police, i.e. hostilities. See Sentencia No SU-256/1999,
21.04.1999; Sentencia No T-1206/2001, 16.11.2001; Sentencia No T-165/2006, 07.03.2006.
103
E.g. Procurador General, Radicación No. 009-72266-02, 21.05.2002, p. 97: “No es justificación
decir que la Policı́a Nacional, por ser de naturaleza civil y no militar, no infringe las normas del
derecho humanitario; por el contrario, resulta reprochable que se planeó y se ejecutó una operación
[. . .], para adelantar una confrontación armada que rebasó los lı́mites permitidos por el derecho
internacional humanitario y de protección a la población civil [. . .]. Es más, en la eventualidad que
no hubiera sido una operación militar, sino policial, existió una confrontación armada de grave
magnitud y se creó un escenario de guerra, que obligaba a la fuerza pública respetar el derecho
internacional humanitario. [. . .] Además, la diferencia entre fuerzas militares y policı́a se ha visto
desdibujada y desnaturalizada, debido al tratamiento militar de los problemas policivos, en un
contexto de violencia endémica-multiforme donde se han confundido la guerra y la polı́tica en el
manejo de la seguridad y la defensa.”
Chapter 3
Legal Requirements for the Use of Lethal Force
Abstract As a result of lex specialis, international humanitarian law governs police

operations that take place inside hostilities, while human rights law regulates
the operations outside the hostilities. With regard to a lawful killing, it can be
concluded that there are certain similarities between IHL and human rights stan-
dards, leading to a convergence of the requirements of both branches. Both bodies
of law require that resorting to lethal force can be legitimate. IHL strongly pre-
sumes that resorting to the use of lethal force against military targets, such as
members of non-state organized armed groups and civilians directly participating in
hostilities, is necessary. Under human rights standards, killing is prohibited. Only in
exceptional situations is it allowed if the killing is not arbitrary, which requires
foremost a legitimate purpose. Moreover, both stipulate restrictions on killing. IHL
presumes that, in circumstances where a person should be recognized as hors de
combat, killing that person is unlawful. This can be the case when the attacked
person “is in the power” of the operating forces. To be so, any objective criterion
suffices that makes it obvious to the operating forces that the person will no longer
defend him/herself, and will not continue to resist. This rule has some common
roots with the “least harmful means” requirement under human rights. Nonetheless,
the requirements to resort to deadly force are restricted more severely in human
rights law. Namely, an escalation of violence has to be prevented by employing a
sufficient set-up of law enforcement officers and by proceeding with a capture at an
appropriate moment, if possible. Such a ruling does not exist in IHL. In addition,
there are differences in the terminology used by IHL and human rights, for
example, with regard to the principle of proportionality.
A. Introductory Explanations of the Right to Life
Life is a supreme right under international law. It is protected by several human

rights conventions and by IHL. The protection of life is an undisputed part of
30 3 Legal Requirements for the Use of Lethal Force
general international law.1 However, a supreme right is not an absolute right. Thus,
a deprivation of this right can be legitimate. Moreover, life and the right to life are
not the same. The right to life relates to its protection by the law. Moreover, it
defines requirements that have to be met in order to legally deprive someone of his/
her life. Conversely, life and its origin are unexplainable. Since the beginning of
humanity, attempts have been made to explain the phenomenon, and even today,
philosophy and different religious groups are puzzled over this mystery. It is true,
without a doubt, that life is unique, and that in the best of cases, offers plenty of
opportunities to an individual. It is of eternal beauty to reflect on one’s life and to
conclude that he/she took advantage of life, and could manage to live it to the
fullest. Deprivation of life causes major damage. The damage is irreversible, and
therefore one of the saddest events that occurs in this world. Accordingly, killing
has an overwhelming moral dimension. It is of such dimension that morality cannot
be decoupled from the right to life. Consequently, the requirements according to
which deprivation is legitimate have to be balanced with morality.
The moral dimension of killing and the balance between law and morality will
not be discussed further. Judging if killing is a moral right is a continuous process to
which everyone can and should contribute.
B. Applicable Branches of International Law
In the following sections, the requirements to legally kill under international law are
analyzed. Foremost, the pertinent branches of international law are determined
whereby it was already concluded that IHL is applicable. In particular, it is assessed
whether human rights standards also apply. Moreover, the analysis includes the
relationship between the different branches. Only after this discussion, the require-
ments to kill legally under each branch are dealt with.
I. Applicability of Human Rights and Applicable Conventions
Colombia is party to a number of international human rights conventions. The most

important are the International Covenant on Civil and Political Rights2 (ICCPR)
and the American Convention on Human Rights3 (ACHR). In order to apply their
human rights standards, it is required that the concrete situation fall under the scope
1
Melzer, Targeted Killing, pp. 177 ff, 211.
2
Adopted and opened for signature, ratification and accession by UNGA, Resolution 2200A
(XXI), 16.12.1966; UNTS Regsitration No. I-14668; entry into force 23.03.1976. Date of
ratification by Colombia: 29.10.1969.
3
Signed at San José, Costa Rica, 22.11.1969; UNTS Registration No. I-17955; entry into force on
18.07.1978. Date of ratification by Colombia: 28.05.1973.
B. Applicable Branches of International Law 31
of the conventions. Both treaties rule that the state-parties respect the respective
rights. This obligation is limited to the territory and jurisdiction of the state that acts
in the concrete situation.4 Hence, a factual power that a state exercises over persons
or territory is necessary.5
As has been analyzed in the previous chapter, the National Police of Colombia is
competent to realize operations against non-state organized armed groups in the
Colombian conflict and against ordinary criminals. International human rights law
governs the police operations if they are using force as a state-power. Article 1.1
ACHR and Article 2.1 ICCPR rule that the state parties respect the rights of all
persons “subject to their jurisdiction”. One may question if the requirement is met
in cases that state-power does not effectively control, at least part of, the territory. It
could be argued that the state cannot be held responsible for acts performed by
others, in particular non-governmental organizations, groups of individuals with a
common interest, or another state.6 However, in the question at hand, state-power
carries out the operations. State agencies, and no other agencies, operate, although
they might do so in situations and parts of the territory that are not under their
effective control. Moreover, the operations take place within the state’s territory
and do not present an extra-territorial operation.7 Finally, the other actors of
influence in the area do not attempt to achieve separation from the state, and in
addition to this, it is unlikely that their control could be considered effective.8 All of
this indicates that the state-power is accountable; thus human rights standards
apply.
It can finally be noted that Article 2.1 ICCPR differs from Article 1.1 ACHR
using the words “within its territory and subject to its jurisdiction”. Hence, it
provides an additional requirement – being “within its territory” – that has to be
met. As previously said, the police operate within their territory. Hence, the
additional requirement is met.
4
Article 2.1. ICCPR and Article 1.1 ACHR.
5
Milanovic, Jurisdiction in Human Rights Treaties, pp. 417, 446. See also Nowak, UN-CCPR
Commentary, Article 2, } 28.
6
ECtHR, Ilascu Case, Application No. 48787/99, Judgment 08.07.2004, }} 311 ff, 376 ff decided
that Moldova was not responsible for a decision that was made in the separatist area of
Transdniestria; instead, the Russian Federation was held responsible, due to its military presence,
dissuasive influence and subsequent effective overall control of the region; Bankovic Case,
Application No. 52207/99, Judgment 12.12.2001, decided that no extra-territorial jurisdiction
was given for the defendant states during the aerial bombing of the Radio-Television Serbia
(RTS) headquarters in Belgrade, during the Kosovo conflict in the course of NATO’s military
action against the FRY.
7
ECtHR, Assanidze Case, Application No. 71503/01, Judgment, 08.04.2004, }} 137 ff, decided
that Georgia could be held responsible for an act that was performed by local authorities of the
Ajarian Autonomous Republic, as these local authorities belong to the state of Georgia.
8
See Section 1.B, “Justification of the Research Topic,” where it is stated that the National Police
of Colombia is present in all 1077 municipals of Colombia, indicating that non-state armed groups
do not effectively control parts of these areas.
II. Relationship Between IHL and the International Law of

Human Rights
IHL and human rights are two different branches of international law. While IHL
regulates the conduct of parties to an armed conflict, human rights law provides
individuals with fundamental rights against abuses.9 Moreover, human rights
often provide an individual with a procedural right in the case of a violation.
Consequently, it was often thought that IHL could be applicable only in times
of war.10
1. Process of Convergence
Over the years, both bodies of law have influenced each other in important ways. In
particular, after World War II, IHL became closer to human rights law with the
creation of GC IV, which regulates the protection of civilians, as well as with
Article 3 GC I–IV. However, it was not intended to create overlapping areas
between the branches of law, and the Universal Declaration of Human Rights of
1945 did not inspire the drafting process of the Geneva Conventions of 1949.11
Only in 1977 did the Additional Protocol I, in particular Article 75 and Article 4 AP
II, take ideas from human rights, in order to provide individuals with protections
against abuses.12 Moreover, an overlap between the applications of both branches
was recognised. Accordingly, the ICRC Commentary states:
The Conventions and their additional Protocols have the same purpose as international
instruments relating to human rights, i.e., the protection of the human person. However,
these are two distinct legal systems, each with its own foundations and mechanisms, and
international humanitarian law applies in situations of armed conflict. Human rights
continue to apply concurrently in time of armed conflict.13
9
Gasser, IHL and Human Rights Law, pp. 149 ff. Provost, International Human Rights and
Humanitarian Law, pp. 16 ff.
10
Heintz, Relationship Human Rights, p. 789.
11
Droege, Interplay IHL and Human Rights, p. 314.
12
Cf. Article 72 AP I “The provisions of this Section are additional to the rules concerning [. . .]
other applicable rules of international law relating to the protection of fundamental human rights
during international armed conflict.” and the Preamble of AP II: “[. . .] Recalling furthermore that
international instruments relating to human rights offer a basic protection to the human person
[. . .]”. Affirmative: Gasser, DIH, p. 21; Sandoz, Commentary AP I, Article 75, } 3092 stating:
“Most of the guarantees listed in sub-paragraphs (a)-(j) are contained in the Conventions and the
Covenant on Human Rights [. . .]”; Droege, Interplay IHL and Human Rights, pp. 313, 341;
Moron, Humanization of humanitarian law, p. 245.
13
Junod, Commentary AP II, Preamble, } 4429.
A few years earlier, during the Tehran International Conference on Human Rights
in 1968, the United Nations considered the application of human rights in armed
conflict. As a result of this process, the United Nations General Assembly adapted
the resolution entitled Respect for Human Rights in Armed Conflict on 19 December
1968.14 Hence, today, it is generally agreed upon that in times of an armed conflict,
both IHL and human rights are applicable.15 Only the US and Israeli governments
use the previous conception.16
There are various reasons to apply human rights in times of war. For example,
Article 15 of the European Convention on Human Rights of 1950 (ECHR), rules
that the Convention is generally applicable in times of war, with the possibility of
derogating from its obligations.17 Similarly, the American Convention on Human
Rights rules in Article 27.1:
In time of war, public danger, or other emergency that threatens the independence or
security of a State Party, it may take measures derogating from its obligations under the
present Convention to the extent and for the period of time strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law and do not involve discrimination on the ground
of race, color, sex, language, religion, or social origin.
14
UNGA, Resolution 2444 (1968).
15
In particular, the UNHRC applies human rights constantly in cases of armed conflict. For
example, see UNHRC, Guerrero v. Colombia, Communication No. 45/1979; CCPR General
Comment No. 31, } 11: “[. . .] the Covenant applies also in situations of armed conflict to which
the rules of international humanitarian law are applicable. While, in respect of certain Covenant
rights, more specific rules of international humanitarian law may be specially relevant for the
purposes of the interpretation of Covenant rights, both spheres of law are complementary, not
mutually exclusive.” Affirmative: Colombian Constitutional Court, Sentencia C-291/2007,
25.04.2007, p. 101 ff: “Esta interacción, en el seno del principio humanitario, del Derecho
Internacional Humanitario y de los Derechos Humanos más esenciales, confirma que estos dos
ordenamientos jurı́dicos se complementan mutuamente en tiempos de confrontación armada,
y que ambos comparten el objetivo cardinal de proteger los derechos básicos y la dignidad de
la persona, en tiempos de guerra y de paz, limitando el poder de los Estados y de las organi-
zaciones para salvaguardar un núcleo básico de garantı́as fundamentales de las que son titu-
lares todas las personas, sin discriminación.” As well as ICTY, Kunarac Case, IT-96-23-T,
Judgment 22.02.2001, } 467: “Because of the paucity of precedent in the field of international
humanitarian law, the Tribunal has, on many occasions, had recourse to instruments and
practices developed in the field of human rights law. Because of their resemblance, in terms
of goals, values and terminology, such recourse is generally a welcome and needed assistance
to determine the content of customary international law in the field of humanitarian law. With
regard to certain of its aspects, international humanitarian law can be said to have fused with
human rights law”.
16
UN Special Rapporteur (Execution), Doc. 29.01.2007, } 18. Alston, UN Human Rights Council
and its Special Procedures in relation to Armed Conflicts, p. 185 ff.
17
Article 15.1 ECHR rules: “In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from its obligations under this
Convention to the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law.”
2. Different Approaches towards Defining the Relationship
It is generally accepted that IHL is lex specialis in relation to human rights law.18
The principle of lex specialis is an accepted interpretation of international law,
according to situations that are specifically regulated by a rule that displaces a more
general rule (lex specialis derogat leges generalis). However, its exact meaning
remains unclear.19 Two different approaches have been elaborated. According to
the first approach, IHL overrides human rights law. However, this does not happen
en bloc; recently a more sophisticated view has been put forth. In particular, the ICJ
held in the Construction of Wall Advisory Opinion:
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.20
The second approach can be called the “concept of complementarity”. This means
that human rights law and humanitarian law do not contradict each other, but
instead, mutually reinforce one another. It is argued that they are based on the
same principles and values. This view is provided on the basis of Article 31.3 lit. c
of the Vienna Convention in the Law of Treaties.21 This approach leads to the result
that a specific norm can be seen as an application of a more general norm; in which
18
It is often related to the ICJ’s rulings in particular, the Nuclear Weapons Case, Advisory
opinion, 08.07.1996, ICJ Reports 1996, p. 226, } 25: “The Court observes that the protection of
the International Covenant of Civil and Political Rights does not cease in times of war [. . .]. 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.” The reasons given are that IHL provides more specific rules that take into account the
particularities of armed conflicts. Affirmative: Heintschel v. Heinegg, Casebook, }} 643 ff; and
Cassimatis, IHL, Human Rights, p. 623 ff; Gasser, DIH, p. 21.
19
ILC, Fragmentation of International Law, Report of the Study Group, }} 46 ff, 56 ff; Lindroos,
The Doctrine of Lex Specialis, p. 35 ff; Vranes, Lex Superior, Lex Specialis, Lex Posterior, p. 391
ff; Karl, Encyclopedia of Public International Law, Vol. IV, p. 935 ff.
20
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 09.07.2004, Reports 2004, p. 136, } 106. The Court confirmed its jurisdiction in
the Case Concerning the Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), Judgment of 19.12.2005, General List No. 116. See also UN Special
Rapporteur (Execution), Doc. 22.12.2004, } 50, “It is now well recognized that the protection
offered by international human rights law and international humanitarian law are coextensive, and
that both bodies of law apply simultaneously unless there is a conflict between them. In the case of
a conflict, the lex specialis should be applied but only to the extent that the situation at hand
involves a conflict between the principles applicable under the two international legal regimes”.
21
Vienna Convention in the Law of Treaties between States and International Organizations or
between International Organizations, UNTS Registration No. I–o. (in the following called Vienna
Convention). Art. 31 regulates general rules of interpretation and provides in } 3 lit. c, “There shall
be taken into account, together with the context: any relevant rules of international law applicable
in the relations between the parties.” Cf. Guellali, Lex Specialis, p. 557; Droege, Interplay IHL and
Human Rights, p. 327 ff.
case, the general norm can be interpreted in the light of the more specific norm.
Accordingly, human rights, as the more general norm, can be interpreted in the
light of international humanitarian law, as the more specific norm.22 Namely, the
jurisdiction of the Inter-American Court on Human Rights relies on this concept. In
the Palmeras Case, the court ruled about the direct application of IHL by both
itself and the Inter-American Commission on Human Rights. Previously, the
Commission had directly applied IHL to a series of cases to assess whether IHL
had been violated.23 Conversely, the court held in a first judgment that both bodies
lack the competence to directly apply IHL, and may only assess violations of the
American Convention on Human Rights.24 A few months later, in a second
judgment, the court clarified that the provisions of the Geneva Conventions can
be taken into consideration in order to interpret the American Convention.25 Hence,
the court applied human rights law in situations of armed conflict, and interpreted
the respective norms in light of IHL. Incidentally, the European Court on Human
Rights follows a similar strategy, meaning that it applies the European Convention
on Human Rights in situations of armed conflict, and interprets the respective
norms in light of IHL.26 However, it does not relate to IHL explicitly in its
interpretation of the Convention. Nonetheless, analyzing its jurisdiction, the court
applies standards corresponding to IHL.27
It would be erroneous to consider one of the previously mentioned approaches to
be the correct one, while rejecting the other. Finally, both question which the more
specific norm is. The lex specialis approach asks whether the specific norm can be
IHL in certain cases. The concept of complementarity applies to human rights, but
acknowledges that a norm can be interpreted in light of IHL if it offers a more
specific regulation. Thus, in the end, a similar result is achieved by both approaches.
The question of both approaches is: which branch of international law offers the
more specific norm? This may differ according to the matter at hand, as stated by
the International Court of Justice, some rights may be exclusively matters of IHL,
while others may be exclusively matters of human rights law; and others, matters of
22
UNHRC, CCPR General Comment No. 31, } 11; Krieger, Relationship Humanitarian Law and
Human Rights, pp. 265–291.
23
Previously, the IACiHR applied IHL directly in a series of cases to assess a violation, cf. Moir,
IHL and the Inter-American Human Rights System, pp. 185–205.
24
IACtHR, Palmeras Case, Preliminary Objections, Serie C No. 67, Judgment 04.02.2000, }} 33
ff. See also Martin, Application du DIH par la Court Interaméricaine.
25
IACtHR, Bámaca Case, Serie C No. 70, Judgment 25.11.2000, } 209.
26
ECtHR, Ergi Case, Application No. 23818/94, Judgment, 28.07.1998; Özkan Case, Application
No. 21689/93, Judgment 06.04.2004; Isayeva Case, Application No. 57947/00, 57948/00 and
57949/00, Judgments 24.02.2005.
27
Heintze, Relationship Human Rights, Law, p. 805 ff; Heintze, ECtHR and the Implementation of
Human Rights Standards During Armed Conflicts, pp. 69 ff, 75; Melzer, Targeted Killing, pp. 384
ff, 392; Guellali, Lex Specialis, p. 553 ff; Droege, Interplay IHL and Human Rights, p. 346 ff.
Contrary to: Abresch, A Human Rights Law of Internal Armed Conflict, p. 741 ff; Orakhelashvili,
Interaction between Human Rights and Humanitarian Law, pp. 168 ff, 181.
both of these branches. Hence, it is suggested that the matter is defined as one
where both branches of law apply, or if only one should be taken into account.28
This is convincing. For example, it is quite obvious that the GC III, and not human
rights law, should regulate the matter of prisoners of war.29 Conversely, in a non-
international armed conflict, such as in Colombia, the conditions of detention and
the treatment of a detained member of an organized armed group should not be a
matter of IHL exclusively, but also of human rights. But why is it obvious that the
first matter is regulated by IHL while the latter by both branches? The GC III
provides very detailed and specific regulations on this.30 There is no need to rely on
further rules and regulations that originate in human rights law. Conversely, the
question of the conditions of detention and the treatment of rebels in a non-
international armed conflict is regulated by IHL, mainly in Article 3 GC I–IV and
Article 4, 5 AP II, and is completed by a few customary rules.31 Human rights law
provides a more detailed regulation, in particular, in the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.32 Hence, it is
appropriate to rely on these rules in the second matter as well.
To conclude, IHL and human rights can overlap, and both can be simultaneously
applicable. The opinion that in situations where both are applicable, the more
specific branch of international law should pertain to the concrete situation is
concurred upon. In order to determine this, it has to first be taken into account
what the matter is, and secondly, it must be analyzed which branch of law provides
a more specific and detailed regulation of the matter.
III. Which Body of Law Regulates the Matter?
The matter in question relates to police operations. In fact, there are two types
of operations: those against organized armed groups and those against ordinary
criminals. In both operations, lethal force is resorted to. Therefore, it is worth
explaining, in further detail, the types of operations that are conducted in order to
determine which body of law regulates the operations.
28
IIHL, IHL and Other Legal Regimes, p. 9.
29
30
For example, Article 26 rules that the use of tobacco shall be permitted.
31
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rules 118–128.
32
The text of the Convention was adopted by the UN General Assembly on 10.12.1984 and came
into force on 26.06.1987. UNTS Registration No. I-24841. Colombia signed the Convention on
10.04.1985 and ratified it on 08.12.1987.
1. Conduct of Hostilities and Law Enforcement
The operations of the police can be entitled “law enforcement”. This term is not
defined under international law, but is used inter alia in certain UN documents,
namely, in the Code of Conduct for Law Enforcement Officials (1979), and the UN
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
(1990). It comprises the exercise of police power by state agents in order to re-
establish law and order. It can be defined as all measures taken by a state to
vertically impose public security, law and order; or, to otherwise exercise its
authority or power over individuals.33
A special type of operation is that of hostilities. The term “hostilities” is not
defined in further detail here; it is analyzed at a later stage (in Section C.II.6, “Direct
Participation of Civilians in Hostilities”). Melzer proposes a definition that seems to
strike a certain consensus between the diverging views:
[T]he concept of ‘hostilities’ comprises all violent and non-violent activities specifically
designed to support one party to an armed conflict by directly causing harm of any
quantitative degree to the military operations or military capacity of another. [. . .]
Conversely, activities that are designed to harm the adversary only indirectly [. . .] may
be part of the general war effort and may build up the military capacity of a party to the
conflict, but do not constitute ‘hostilities’ within the meaning of IHL.34
At this stage, it suffices to disclose that hostilities differ from law enforcement,
insofar as they are not characterized by a vertical relationship (between state-power
and individuals), but by a horizontal one (between parties to the conflict). However,
this conceptual difference depends also on one’s point of view. Under IHL, the
relationship is a horizontal one. But in the case of a non-international armed conflict
where the operation is directed against a non-state party to the conflict, domestic
law continues to assume that the relationship is vertical. Consequently, hostilities
carried out by state agencies against an organized armed group could also represent
law enforcement operations.35
2. Legal Framework
Previously, in Section B.I, “Applicability of Human Rights and Applicable

Conventions” the conclusion was reached that law enforcement operations are
generally governed by the international law of human rights. Hostilities are generally
governed by IHL (cf. Section 2.A.I, “Article 3 GC I–IV”). As long as the operation
33
Melzer, Targeted Killing, p. 129.
34
35
The constellation that law enforcement also coincidentally represents hostilities is often given in
a non-international armed conflict and during an occupation, when measures are taken with the
aim of assuring control over a territory and its inhabitants. See also: Melzer, Targeted Killing,
pp. 129, 334.
takes place outside of hostilities, IHL does not apply.36 Consequently, the
operations of the National Police that are conducted against ordinary criminals are
– without a doubt – regulated exclusively by human rights standards. In the case that
a law enforcement operation represents hostilities at the same time, IHL and human
rights law overlap.37 Subsequently, operations against an organized armed group
(or civilians participating directly in hostilities) can be regulated by both branches.
As said previously, it has to be determined which branch provides the more specific
rules for the operation in the case that lethal force is used.38 This branch would
regulate the concrete operation.
Some experts consider that for the conduct of hostilities, it is appropriate that
IHL would regulate the operation, and human rights would not. It is argued that IHL
provides a more detailed and specific regulation, and therefore must be considered
lex specialis.39 However, this view is criticised by others. Abresch considers that
the rules governing a non-international armed conflict would only be those of treaty
law, namely Article 3 GC I–IV and AP II, and doubts that further customary rules
exist. Hence, he concludes that the standards under human rights law, as established
by the European Court of Human Rights, would be more specific.40 This opinion is
unconvincing for two main reasons.
First, the court relies on a single rule, namely an exceptionally lawful killing in
the case of defence of any person from unlawful violence, under Article 2.2 ECHR.
This is neither a specific nor a detailed rule, as Abresch claims. However, the court
has a complex interpretation of this rule. This interpretation is further influenced by
IHL standards.41
Second, the conventional rules of Article 3 GC I–IV and AP II do not provide a
detailed regulation of the conduct of hostilities. However, the pertinence of
customary law must not be underestimated, and the doubts about its existence
are incomprehensible. In 2005, the International Committee of the Red Cross
published a study on customary rules of IHL that are applicable in international
36
Melzer, Targeted Killing, p. 89 ff; Sassòli/Bouvier, How does Law protect in War?, p. 342 ff;
IIHL, IHL and Other Legal Regimes, p. 13.
37
Watkin, Use of Force, p. 28 ff lists currents situations where law enforcement operations are
governed by both IHL and human rights around the world. See also, ECtHR, Loizidou Case,
Application no. 15318/89, Judgment 18.12.1996.
38
Cassimatis, IHL, Human Rights, p. 630 ff, emphasizes that systemic integrity also needs to be
considered.
39
Melzer, Targeted Killing, pp. 76 ff, 382; Droege, Interplay IHL and Human Rights, pp. 344, 347
ff; Akhavan, Reconciling Crimes against Humanity with the Laws of War, p. 28 ff. Contrary to:
Orakhelashvili, Interaction between Human Rights and Humanitarian Law, pp. 169, 181.
40
Abresch, A Human Rights Law of Internal Armed Conflict, pp. 747 ff, 760 ff concluding, “The
travaux pre´paratoire inflict a heavy burden on anyone arguing for strong customary protections
for civilians against the incidental effects of hostilities”.
41
Heintze, Relationship Human Rights, p. 805 ff; Heintze, ECtHR and the Implementation of
Human Rights Standards During Armed Conflicts, pp. 69 ff, 75; Melzer, Targeted Killing, pp. 384
ff, 392; Guellali, Lex Specialis, p. 553 ff; Droege, Interplay IHL and Human Rights, p. 346 ff.
and non-international armed conflicts.42 The study was elaborated with the
assistance of experts in IHL as representatives of various geographical regions
and different legal systems, and in consultation with experts in governments and
international organizations.43 It is based on the assessment of both state practice
and opinio juris sive necessitatis, i.e. the belief that such practice is required,
prohibited or allowed, depending on the nature of the rule, as a matter of law.
Since it was published, the results of the study have been generally accepted,44 and
different courts have referred to it and agreed upon the customary character of the
applied rules.45 Moreover, different courts and scholars assumed the existence of
customary rules of IHL governing the conduct of hostilities in non-international
armed conflicts earlier than 2005.46 As it is shown later, customary IHL provides a
number of detailed rules governing the conduct of hostilities in a non-international
armed conflict. These rules are much more detailed and specific than the rule
under human rights law according to lawful killing in cases of self-defence or the
defence of another person. Therefore, operations in the frame of hostilities should
be regulated by IHL.
Certain experts differentiate the lex specialis rule for the conduct of hostilities. The
level of violence during the operations is taken into account. E.g. Droege states:
As a general rule, humanitarian law is the law most appropriate for the conduct of
hostilities, because its norms on the use of force are based on the assumption that military
operations are ongoing and that the armed forces have no definite control over the situation.
Conversely, where the situation is remote from the battlefield and the state authorities have
42
Henckaerts, Study on Customary IHL, p. 178.
43
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Introduction, p. XXV ff.
44
The only critics came from within the US government: Bellinger/Haynes, US Government
Response, p. 443 ff, and are related to the methodology of the study, to three out of the 161
rules established in the study, and to one further rule regarding its interpretation (namely Rule 31
“Protection of humanitarian relief personnel”, Rule 45 “Prohibition on causing long-term,
widespread and severe damage to the environment”, Rule 78 “Prohibition of the use of anti-
personnel exploding bullets” and Rule 157 “Right to establish universal jurisdiction over war
crimes”). See also: Henckaerts, Response to US Comments, p. 473 ff.
45
E.g. Colombian Constitutional Court, Sentencia No. C-291/2007, 25.04.2007, p. 59 ff; Israeli
High Court, Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02,
Judgment, 13.12.2006.
46
ICTY, Tadic Case, Case No. IT-94-1, Decision, 02.10.1995, } 127. The Colombian Consti-
tutional Court has recognized it in many decisions, e.g. Sentencia No. C-225/95, 18.05.1995, p. 53
ff. Affirmative: Turns, Methods and Means in non-international armed conflict, p. 115 ff; Moir,
Internal Armed Conflict, p. 133 ff; Meron, Geneva Conventions as Customary Law, p. 348 ff;
Chetail, Contribution of the ICJ, pp. 242 f, 268 holds that the ICJ referred indirectly to the
customary nature of humanitarian law treaties in its first judgment of 09.04.1949 (Corfu
Channel Case) and that, over the years, it has “recognized that fundamental rules of international
humanitarian law embedded in multilateral treaties go beyond the domain of purely conventional
law”.
enough control over a situation to be able to carry out law enforcement operations, human
rights law provides the most appropriate framework.47
This differential approach is interesting, in particular since it aims to provide more

specific protection to the parties to the conflict and their members. However, it does
not question the general assumption that hostilities are governed by IHL, and not by
human rights. The suggested exception that aims to restrict lethal force is analyzed
under the respective Section C.III.1, “Human Rights Approach.”
IV. Is There a Specific Branch of International Law for the Fight

Against Terrorism?
For decades, the international community has undertaken efforts to fight terrorism.
These were strengthened in the aftermath of 9/11. Regulations were created, in
particular by the United Nations Security Council,48 as well as by the Organization
of American States. The latter created the Inter-American Convention on Terrorism
of 2 June 2002.49 Thus, one might ask if this new legislation has created a new
branch of law that would enter into a special relationship with IHL and human
rights law. However, the respective regulation is to be qualified as international
cooperation. Moreover, the regulation endeavours the full respect of IHL and
human rights standards.50 The Inter-American Convention on Terrorism rules in
Article 15:
1. The measures carried out by the state parties under this Convention shall take place with
full respect for the rule of law, human rights, and fundamental freedoms.
2. Nothing in this Convention shall be interpreted as affecting other rights and obligations
of states and individuals under international law, in particular the Charter of the United
Nations, the Charter of the Organization of American States, international humanitarian
law, international human rights law, and international refugee law.
Accordingly, there is no further branch of international law. Consequently, the

relationship between the regulation of the fight on terrorism on the one hand, and
IHL and human rights law on the other, is a non-issue.
47
48
See, in particular, UNSC, Resolution 1373 (2001). The efforts that have been undertaken have
not yet led to a general convention on the fight against terrorism. At least the UNGA adopted the
International Convention for the Suppression of Acts of Nuclear Terrorism on 13.04.2005.
49
The Convention was signed and ratified by most member-states of the OAS, including the USA.
It came into force on 07.10.2003 (23 states were parties as of 31.12.2007). It was signed by
Colombia on 06.03.2002; however, it has not yet been ratified.
50
Flynn, The Security Council’s Counter-Terrorism Committee and Human Rights, p. 371 ff.
C. Killing under International Humanitarian Law (Hostilities) 41
V. Summary
Police operations that take place inside hostilities, i.e. those that are directed against
organized armed groups, are regulated by IHL. Human rights law governs opera-
tions that take place outside the hostilities; thus, they are directed against other
ordinary criminals.
C. Killing under International Humanitarian Law (Hostilities)
In this section, the legal requirements of law enforcement operations, that are also
considered hostilities, are analyzed. As stated in Section B, “Applicable Branches
of International Law,” these operations are classified as the conduct of hostilities,
and are regulated by IHL.
I. Pertinent Rules for Colombia
As said above, Article 3 GC I–IV and AP II are applicable. Treaty law, however, is
rather rudimentary, and provides little detail with regard to the rules regulating the
use of lethal force. Thus, it can be completed by customary IHL; in particular, the
principles of distinction, of military necessity, and of proportionality, as well as
the prohibition of attacking persons rendered hors de combat.
II. Principle of Distinction and Prohibition of Indiscriminate

Attacks
The principle of distinction obliges parties to the conflict to distinguish between

civilians and combatants at all times. It is not ruled in either Article 3 GC I–IV or
AP II. Article 48 Protocol I of 8 June 197751 provides the following principle for an
international armed conflict:
In order to ensure respect for and protection of the civilian population and civilian objects,
the Parties to the conflict shall at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives and accordingly shall
direct their operations only against military objectives.
51
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, UNTS Registration No. I-17512 (in the
following called AP I).
The principle of distinction is of customary nature, and applies to non-international

conflict.52 The principle aims to protect the civilian population, as stated in Article
48 AP I.53 It has important consequences for the conduct of hostilities by the
parties, namely their attacks. For example, it is ruled in Article 13.2 AP II:54
The civilian population as such, as well as individual civilians, shall not be the
object of attack.
The principle of distinction has another important impact on the conduct of
hostilities, namely the prohibition of indiscriminate attacks.55 These are attacks,
(a) which are not directed at a specific military objective;
(b) which employ a method or means of combat that cannot be directed at a specific
military objective; or
(c) which employ a method or means of combat of which the effects cannot be
limited as required by international humanitarian law;
and consequently, in each such case, are of a nature to strike military objectives and
civilians or civilian objects without distinction.56
While civilians must not be attacked, it has to be questioned whether non-
civilians may be attacked. This requires that a person can present a “military
objective” in the sense of Article 48 and Article 52.2 AP I.57 One can conclude
this because the provision also uses the term “objects” in difference to “persons,”
and by analyzing the prohibition against attacking civilians.58 The prohibition can
be interpreted with the argumentum e contrario, that non-civilians may be attacked.
Accordingly, the ICRC Study on customary IHL provides in Rule 1:
Attacks may only be directed against combatants.59
52
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 1. Affirmative Colombian Constitu-
tional Court, Sentencia No. C-291/2007, 25.04.2007, pp. 61, 63, 69 ff, considering the principle as
ius cogens.
53
Junod, Commentary AP II, Article 13 } 4772; Henckaerts/Doswald-Beck, Customary IHL, Vol.
I, Rule 1; Chetail, Contribution of the ICJ, p. 253; ICJ, Nuclear Weapons Case, ICJ Reports 1996,
p. 226, Advisory Opinion, 08.07.1996, } 78; Colombian Constitutional Court, Sentencia No.
C-225/1995, 18.05.1995, p. 54.
54
Article 13.2 AP II is part of customary IHL, Henckaerts/Doswald-Beck, Customary IHL, Vol. I,
Rule 1.
55
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 11. Affirmative Colombian Cons-
titutional Court, Sentencia No. C-291/2007, 25.04.2007, p. 80.
56
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 12.
57
Article 52.2 rules that “attacks shall be limited strictly to military objectives”. The provisions are
of customary nature, and are applicable in a non-international armed conflict. Cf. Henckaerts/
Doswald-Beck, Customary IHL, Vol. I, Rules 1 and 7.
58
Sandoz, Commentary AP I, Article 48, } 1874: “As regards military objectives, these include the
armed forces and their installations and transports.” and Article 52, } 2017; Dinstein, Legitimate
Military Objectives, p. 4; Fleck, Handbook of IHL, }} 441 ff.
59
It is held in the study that the rule is applicable to a non-international armed conflict.
Similarly, the IHL Manual on the Law of Non-International Armed Conflict of the
International Institute of Humanitarian Law holds:
Attacks must be directed only against fighters [. . .].60
To conclude, both the principle of distinction and the prohibition of indiscriminate

attacks aim to protect the civilian population. Attacks must not be directed against
civilians; they may only be directed against non-civilians. It still has not been
clarified who is a civilian and who is a non-civilian. In Article 52.2 AP I, the term
“military object” is defined, although a definition of the persons that may be
targeted is not provided. Hereafter, the question is analyzed in further detail. Before
addressing these questions, it is asked why IHL allows the attack against persons
and why it can include lethal force.
1. Reasons for the Loss of Protection and the Use of Lethal Force
It might be astonishing that under IHL, attacks against non-civilians (combatants)

are allowed. However, one must understand some of IHL’s very basic ideas.
Differently than the United Nations Charter, IHL does not endeavour to prohibit
war, but accepts the existence of armed conflicts, recognizing that the adverse
parties aim to achieve military victory. Accordingly, the 1868 St. Petersburg
Declaration rules “[t]hat the only legitimate object which States should endeavour
to accomplish during war is to weaken the military forces of the enemy”.61
The purpose of IHL is to impose humanitarian considerations. The means and
methods of warfare are not unlimited. IHL endeavours to prevent civilians and non-
civilians (combatants) from superfluous injury and unnecessary suffering.62
Accordingly, with regard to civilians, it prohibits all attacks since attacks against
civilians do not weaken the military forces of the adversary. Conversely, with
regard to combatants or other non-civilians, IHL recognizes that military operations
may be directed at them, since it is presumed that attacking them is an indispensable
tactic in attempting to submit the adversary.
60
IIHL, Manual Non-international Armed Conflict, } 2.1.1.
61
Superfluous injury or unnecessary suffering can be limited. Accordingly, the means and methods
of attack can be restricted or interdicted. E.g. the 1868 St. Petersburg Declaration rules that
“[t]he Contracting Parties engage mutually to renounce, in case of war among themselves, the
employment by their military or naval troops of any projectile of a weight below 400 grammes,
which is either explosive or charged with fulminating or inflammable substances”. Moreover,
attacks (including lethal force) can be forbidden in exceptional cases.
62
Gasser, DIH, pp. 4 ff, 17 ff.
2. Reasons for the Use of Lethal Force
Permission to attack non-civilians does not necessarily allow the use of lethal force.
Rather, treaty IHL does not provide a general permission to kill. In the definition of
“attack” under Article 49 AP I, it is not mentioned explicitly.63 In many countries,
military instruction manuals define an attack as an offensive act aimed at destroying
enemy forces and gaining ground.64
In order to show that killing the adversary is not prohibited under IHL, one has to
go back and look at the basic concept of IHL. As held before, IHL recognizes that
the purpose of war is to weaken the adversary. Achieving military advantage is
included in the concept of weakening the adversary.65 IHL presumes that military
advantage can be achieved by wounding and even killing the adversary. This can be
concluded in several provisions; Artcile 23.1 lit (c) Hague Convention IV rules:
“[. . .] it is especially forbidden [. . .] (c) To kill or wound an enemy who, having
laid down his arms, or having no longer means of defence, has surrendered at
discretion.”66 In this article, lethal force is forbidden in a special situation. Since it
is forbidden in this special situation, it can be concluded using the argumentum a
contrario that, in general, IHL does not interdict the killing of an adversary.
Similarly, it can be argued with Article 37 AP I that “killing, injuring or capturing
an adversary by resort to perfidy” is prohibited.67 The provision forbids killing by
resorting to special tactics; thus by relying on the argumentum a contrario, it can be
concluded that in general, it is not prohibited.68
Hence, under IHL, there is not a general prohibition of the use of lethal force
against the adversary. At the same time, IHL does not provide general permission to
kill. How should the absence of both a general prohibition and a general permission
be interpreted? Melzer holds that:
[. . .] it constitutes no more than a strong presumption that, in a situation of armed conflict, it
will generally be military necessary to kill, injure or capture combatants of the opposing
armed forces in order to bring about the submission of the adversary [. . .].69
63
Article 49.1 AP I provides: “1. ‘Attacks’ means acts of violence against the adversary, whether in
offence or in defence”.
64
Sandoz, Commentary AP I, Article 49, } 1879.
65
Cf. for example Article 52.2 AP I, “Attacks shall be limited strictly to military objectives. In so
far as objects are concerned, military objectives are limited to those objects which by their nature,
location, purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite
military advantage”. Affirmative, Dinstein, Legitimate Military Objectives, p. 5 ff.
66
Annex to the Convention Regulations Respecting the Laws and Customs of War on Land (Hague
Regulation 1907); (in the following called Hague Convention IV).
67
The rule is of customary nature, and is also applicable in a non-international armed conflict,
68
Ruys, License to kill, p. 15.
69
To conclude, the goal of armed conflict is to defeat the adversary. Accordingly, IHL
recognizes that it is indispensable to attack the adversary in order to achieve the
goals of war, and therefore does not generally forbid killing. In this regard, the use
of lethal force is strongly presumed to be necessary. A diverging opinion suggests
that killing at any time would be allowed under IHL unless the attacked person is
rendered hors de combat. This view will be discussed later on in Section C.III.2.c,
“Necessity-factor with Regard to the Use of Lethal Force”.
3. Notion of “Civilian”
There is no definition of the notion “civilian” under Article 3 GC I–IV and AP II.
According to customary IHL pertaining to non-international armed conflict,
civilians are defined as “persons who are not members of the armed forces”.70
The definition is negatively formulated since it excludes a special group from the
status of civilian, meaning members of the armed forces. Moreover, the provision
defines that a person is either a “civilian” or a “member of the armed forces”.
4. Notion of “Member of the Armed Forces”
In the aforementioned chapter, it was clarified that civilians are “persons who are
not members of the armed forces”. Hence, it must be clarified who are members of
armed forces and what the meaning of “armed forces” is. Hereby, it is unclear
whether “armed forces” only refers to governmental armed forces, or also refers to
other groups of non-governmental armed individuals.
IHL governing non-international armed conflict does not provide a definition of
“armed forces” in treaty or customary law.71 Article 1 AP II distinguishes between
“armed forces”, “dissident armed forces” and “other organized armed groups.” In
the following section, whether all three categories fall under the term “armed
forces” according to the definition of a civilian, is discussed. Moreover, it is
discussed how “armed forces” should be interpreted according to Article 3 GC
I–IV. Different from Article 1 AP II, it does not distinguish between the various
categories.
70
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 5. The rule relies mainly on Article 50
AP I.
71
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 4. The rule pertains to an international,
but not to a non-international armed conflict.
a) Governmental Armed Forces
The first of the three groups of “armed forces” under Article 1 AP II regards
governmental units. This is in-line with the traditional interpretation of armed
forces that belong to a High Contracting Party, thus a state. Article 43 AP I, for
example, does so.
In conclusion, members of governmental armed forces are not civilians.
Hence, they can be attacked. However, according to Article 9 AP II, an exception
has to be made for medical and religious personnel. When they are under the
command of the armed forces (military medical personnel), they are not civilians,
and respectively, would not be protected. However, they enjoy special protection as
medical personnel who are exclusively assigned to medical duties, and therefore
must be respected and protected under all circumstances. They lose their protection
if they commit acts that are harmful to the enemy outside of their humanitarian
function. Religious personnel who are exclusively assigned to religious duties must
also be respected and protected in all circumstances. They lose their protection if
they commit acts outside of their humanitarian function that are harmful to the
enemy.72
b) Organized Armed Groups
As far as members of organized armed groups are concerned, they do not belong to
governmental “armed forces,” and therefore, they do not lose their status as
civilians. However, the term “armed forces” under the definition of “civilians”
(persons who are not members of the armed forces) may be broadened to include
“organized armed groups” as well. In this case, the term “armed forces” would
have, by definition, a different meaning than the one in Article 1 AP II.
A broader interpretation of “armed forces” in the definition of civilians, including
“organized armed groups,” would require that members of a non-state organized
armed group lose their status as civilians due to that membership. There are
diverging opinions on this matter.
(1) Civilians or Non-Civilians?

Some experts state that a person is either a combatant or a civilian, relying on the
definition according to Article 50.1 AP I:
A civilian is any person who does not belong to one of the categories of persons referred to
in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.
In case of doubt whether a person is a civilian, that person shall be considered to be a
civilian.
72
The rule is of customary nature, cf. Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rules
25, 27.
It is concluded that a combatant is only a member of the governmental armed

forces. Since a member of an organized armed group is not one of the governmental
armed forces, he/she should be considered a civilian.73
The conclusion is convincing, as far as international armed conflict is
concerned, since Article 50 AP I pertains to an international armed conflict. In
the case of a non-international armed conflict, the de jure status as a combatant is
not provided. Consequently, the same conclusions cannot be reached. Instead, the
distinction between civilians and non-civilians has to be analyzed separately for a
non-international armed conflict.
In divergence to the above-mentioned view, the ICRC Commentary holds that:
Those who belong to armed forces or armed groups may be attacked at any time.74
This suggests that members of organized armed groups are non-civilians. Similarly,
the Manual on the Law of Non-International Armed Conflict of the International
Institute of Humanitarian Law states:
Civilians are all those who are not fighters.75
The manual also clarifies:

For the purposes of this Manual, fighters are members of armed forces and dissident armed
forces or other organized armed groups, or taking an active (direct) part in hostilities.76
According to the manual’s definition, members of organized armed groups are

deprived of their status of civilians.77 However, the reasons for this are not explained
in the two commentaries. Experts who have come to the same conclusion argue that
there is a need to strengthen the civilian population as a whole, and conclude that a
distinction is needed between armed forces and “peaceful” civilians.78 They explain
that in the last few decades, the civilian population has become increasingly affected
by armed conflicts, and that the distinction between civilian and military functions
has become less and less clear. Armed actors intermingle with peaceful civilians,
73
Israeli High Court, Public Committee against Torture in Israel v. Government of Israel, HCJ 769/
02, Judgment 13.12.2006, considers that they are either members of governmental armed forces or
civilians, concluding that members of organized armed groups belong to the latter category. The
court’s main argument is that in international armed conflicts there are “combatants” and “civi-
lians,” but that no additional (third) category of persons is recognized by IHL. As combatants are
only members of state armed forces, members of non-state organized armed groups have to be
considered civilians. Contrary to: Watkin, Canada/US Military Interoperability and Humanitarian
Law Issues, p. 281 ff, who suggests a third category, namely “unlawful combatants”; Dinstein,
Unlawful Combatancy, p. 247 ff; Schondorf, Targeted Killings, p. 306 ff; Hoffman, Terrorists,
p. 167. See also Heintschel v. Heinegg, Casebook, } 703.
74
Junod, Commentary AP II, Art. 13, } 4789.
75
IIHL, Manual Non-international Armed Conflict, } 1.1.3.
76
IIHL, Manual Non-international Armed Conflict, } 1.1.2. Affirmative: Colombian Constitutional
Court, Sentencia No, C-291/2007, 25.04.2007, p. 74.
77
Ben-Naftali/Michaeli, Israeli Policy on Targeted Killings, p. 270 ff.
78
Fenrick, Targeted Killings, p. 338 raises the question without giving an answer.
which leads to confusion and extreme difficulties in implementing the principle of

distinction. Peaceful civilians are more likely to become victims of attacks, since it is
impossible to identify them as not being the enemy. Accordingly, they propose to
exclude the members of “organized armed groups” from the status of civilians. This
means that a person loses his/her protection as a civilian based on their membership
of an organized armed group.79
This view is supported by different arguments. In particular, the drafting process
of AP II shows one interesting aspect. In a draft of AP II, the definition of a civilian
was adopted by consensus in Committee III of the Diplomatic Conference Article
25, as follows:
(1) A civilian is anyone who is not a member of the armed forces or of an organized armed
group.
(2) The civilian population comprises all persons who are civilians.80
According to the drafted definition, a member of an organized armed group is not a

civilian, and consequently, does not enjoy the respective protection. The provision
was not adopted in the final protocol, since, in the end, a treaty with a very limited
number of articles was decided upon. The idea behind the drafted provision was not
rejected, however.
Moreover, the wording of Article 1.1 AP II provides a further argument. The
article rules:
This Protocol [. . .] shall apply to all armed conflicts [. . .] which take place in the territory of
a High Contracting Party between its armed forces and dissident armed forces or other
organized armed groups [. . .].
The article refers to the High Contracting Party’s “armed forces,” “dissident armed
forces,” and “other organized armed groups.” Hence, it treats all of them as parties
to the conflict and provides them with equal treatment.
Finally, equal treatment of both governmental armed forces and organized
armed groups as armed actors who are not civilians, is in-line with the neutral
character of IHL, which aims to treat the parties to the conflict without distinction as
much as possible.81 Conversely, if the members of an organized armed group were
considered civilians and enjoyed the respective protection, organized armed groups
would have an important military advantage. At the same time, this advantage
would represent a disadvantage to the adversary – the armed forces. If this were the
case, it would be prohibited for the governmental armed forces to attack organized
armed groups, except under specific exceptions that will be discussed at a later
point. Such unequal treatment could not be considered as being in compliance with
the neutral nature of IHL.
79
ICRC, Direct Participation in Hostilities – Summary Report III, p. 43 ff; Melzer, Targeted
Killing, p. 318 ff; Dinstein, The System of Status Groups, p. 150 ff.
80
O.R. XIV, CDDH/215/Rev.1, p. 320.
81
Junod, Commentary AP II, Scope of this Protocol, } 4442; ICRC, IHL and the Challenges of
Contemporary Armed Conflicts, p. 20; Sassòli/Bouvier, How does Law in War?, p. 106; Berman,
Privileging Combat?, p. 11 ff.
Some authors question the argument of the equal treatment of opposing parties
under IHL in the case of non-international armed conflict. They hold that members
of organized armed groups remain criminals under domestic law, which is
respected by IHL. Hence, in this respect, they are at a disadvantage compared to
members of governmental armed forces.82 Moreover, it is explained that during the
drafting process of AP II, there were important discussions on this issue that led to
the rejection of a proposed draft that provided them with equal treatment.83
Accordingly, one should not assume that governmental armed forces and non-
state organized armed groups require equal treatment. However, in the author’s
opinion, this conclusion about the rejected draft is mistaken. States are unwilling to
provide organized armed groups, i.e. rebels, with legitimacy, or even a right to
participate in hostilities.84 Therefore, the High Contracting Parties added that
“[t]he application of the preceding provisions shall not affect the legal status of
the Parties to the conflict”85 to the last sentence of Article 3 GC I–IV. This
obviously differentiates between rebels and governmental armed forces, which
have the right to participate in hostilities.86 Rebels do not have this right, and
therefore do not enjoy equal treatment. However, in general, unequal treatment was
not endeavoured. In particular, it cannot be assumed that organized armed groups
should be considered civilians. This would lead to an advantage over the govern-
mental armed forces. It cannot be assumed that the High Contracting Parties would
have attempted this.
Hence, it can be concluded that members of non-state organized armed groups
are not civilians. Under the definition of civilians, non-state organized armed
groups are considered “members of armed forces.” Insofar as the traditional
concept of “armed forces” goes, groups and individuals under state control are
not included in the definition. However, the traditional concept was originated for
conflicts between states, under Article 2 GC I–IV. In a conflict of non-international
character, a different meaning can be disclosed.
82
Dowald-Beck, The Right to Life in Armed Conflict, p. 890, states the same, regarding a different
matter than the status of civilian or non-civilian. Hence, it shall not be said that her view differs on
this matter.
83
The draft of Article 5 provided, “The rights and duties of the parties to the conflict under the
present Protocol are equally valid for all of them”. Cf. also Bothe, New Rules for Victims of
Armed Conflicts, p. 604 ff.
84
Pictet, Commentary GC I, Artikel 3, p. 60 ff.
85
See the corresponding rule of Article 3.1 AP II, “Nothing in this Protocol shall be invoked for the
purpose of affecting the sovereignty of a State or the responsibility of the government, by all
legitimate means, to maintain or re-establish law and order in the State or to defend the national
unity and territorial integrity of the State”.
86
Article 43.2 AP I, “Members of the armed forces of a Party to a conflict [. . .] are combatants, that
is to say, they have the right to participate directly in hostilities”.
(2) Exceptions
It would go too far to exclude each and every member of a non-state, organized
armed group from having the status of a civilian. Foremost, medical and religious
personnel of the organized armed groups should be provided with special prote-
ction, as are medical and religious personnel of governmental armed forces.
Furthermore, there is a particularity concerning an organized armed group’s affilia-
tion in comparison with armed forces. Armed group membership is generally not
constituted by law, but is instead realized in many ways that can lead to an
extensive affiliation with an armed group. This can occur by forced recruitment,
individual choice, as well as social, tribal, cultural, political, religious or another
form of affiliation. This leads to the phenomenon that an individual can easily be a
member of an organized armed group without necessarily being involved in any
fighting (different from members of armed forces). Some do not fight at all, some
only do so sporadically, and some support the group in a way that may or may not
qualify as direct participation in hostilities. Consequently, the approach of deter-
mining the legitimate target on the sole basis of membership of an organized armed
group has to be restricted.87 Only those individuals who assume a “combat func-
tion” on a continuous basis can be excluded from civilian status. Combat functions
are activities that consist of direct participation in hostilities.88
Combat or military functions are expressed by wearing a uniform, distinctive
signs, and/or weapons;89 or may be based on conclusive behaviour, for example,
when one directly participates in hostilities. As long as the combat functions are
carried out on a sporadic, spontaneous or unorganized basis, the person must still be
considered a civilian.
(3) De facto Affiliation

Combat functions can also be performed on behalf of the organized group by
individuals who are not necessarily “real” members of the group; for example,
private contractors and employees. The qualifications of these personnel do not
depend on their membership for the same reason as previously stated: affiliation
with the group can be very sporadic, and is not the only criterion to use when
deciding whether a person can be considered a civilian or non-civilian. When the
organized armed groups give de facto combat functions to private contractors or
employees, and this leads to their direct and regular participation in hostilities,
87
Pictet, Commentary GC IV, Article 3, p. 40: “[. . .] Article 3 has an extremely wide field of
application and covers members of the armed forces as well as persons who do not take part in the
hostilities. In this instance, however, the Article naturally applies first and foremost to civilians –
that is to people who do not bear arms”.
88
Melzer, Targeted Killing, p. 320 ff; ICRC, Direct Participation in Hostilities – Summary Report
III, p. 48 ff; ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation II,
pp. 16, 31 ff.
89
Relying on the definition of “armed forces,” according to Article 1 H IV R; Article 13 [1], [2], [3]
and [6] GC I, and GC II; Article 4 A [1], [2], [3] and [6] GC III.
these individuals may then be considered non-civilians. This implies that they act
with the consensus of the group. However, if such personnel engage spontaneously
in direct participation in hostilities on their own initiative, and without the autho-
rization of the group (express or tacit), they remain civilians.90
(4) Excursus: The Term “Combatant” in IHL Ruling Non-International Conflict

The author has already used the terms “non-civilians” and “members of armed
forces.” Further terms such as “fighters” and “combatant” have also been mentioned.
It should be clarified that the term “combatant” has a special meaning under IHL
that regulates international armed conflicts. The status of combatant is exclusively
provided to members of the armed forces, meaning governmental armed forces.
They have the right to participate in hostilities, according to Article 43.2 AP I,91 as
well as the status of prisoner of war, under Article 4 GC III and Article 44.1 AP I. In
non-international armed conflicts, the status of combatant is not granted.92 The
reason for this has been previously explained as a lack of will on the part of the
High Contracting Parties to provide rebels with any legitimacy or said privileges.
Nonetheless, the exclusion of this term in IHL pertaining to non-international
armed conflict does not mean that it is not used. For example, the ICC Statute
uses the term “combatant” in the context of a non-international armed conflict in
Article 8.93 However, when it is used with regard to a non-international armed
conflict, it is not meant to claim or even to grant the privilege of participating in
hostilities or being a prisoner of war. Instead, it is used to facilitate the description
of a person who is not a civilian, i.e. a member of the “armed forces,” within the
definition of civilians. This includes, as analyzed earlier, members of regular armed
forces and of organized armed groups. Hence, the utilization of the term is not a de
jure notion, but a descriptive one.94 The Manual on the Law of Non-International
90
ICRC, Direct Participation in Hostilities – Summary Report III, p. 69 ff; ICRC, Direct Parti-
cipation in Hostilities – Interpretive Guidance, Recommendation III, pp. 16, 37 ff.
91
This implies immunity from prosecution of lawful acts of war, see Sassòli/Bouvier, How does
Law protect in War?, pp. 145, 155.
92
See the above-quoted Article 3, the last sentence of GC I–IV, and corresponding rule of Article
3.1 AP II: “Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of
a State or the responsibility of the government, by all legitimate means, to maintain or re-establish
law and order in the State or to defend the national unity and territorial integrity of the State”.
93
Article 8.2 lit. c provides: “Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established framework of international law,
namely, any of the following acts: [. . .](ix) Killing or wounding treacherously a combatant
adversary [. . .].”
94
An example of state practice where the term is used can be found is in the Bosnia and
Herzegovina Agreement No. 1 of May 22, 1992, providing “captured combatants shall enjoy the
treatment provided for the Third Geneva Convention,” published in: Sassòli/Bouvier, How does
Law protect in War?, p. 1767. See also Melzer, Targeted Killing, p. 323 ff; Henckaerts/Doswald-
Beck, Customary IHL, Vol. I, Rule 1 p. 3; IACiHR, Abella v. Argentina, Case No. 11.137, Report
No. 55/97, 18.11.1997, } 178; Colombian Constitutional Court, Sentencia No. C-291/2007,
Armed Conflict of the International Institute of Humanitarian Law has attempted to

avoid the term “combatant” by using “fighter.” However, other literature has not
established the latter term, or has done so only rudimentarily.95
c) Notion of “Armed Forces” According to Article 3 GC I–IV
It is interesting to note that the wording of Article 3 GC I–IV relates only to armed
forces, unlike Article 1 AP II, which relates to organized armed groups as well.
Article 3 GC I–IV rules:
[. . .] Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely [. . .].
As stated before, the term “armed forces” relates traditionally to governmental

forces, as it does in Article 1 AP II. However, its meaning can vary in a non-
international armed conflict, as held previously in the definition of civilians in a
non-international armed conflict. Thus, “armed forces” in Article 3 GC I–IV could
relate to both governmental and non-state organized armed groups. This is in-line
with the purpose of Article 3 GC I–IV – providing protection. It is unlikely that the
provision exclusively endeavours to protect governmental troops and does not do so
for non-state actors, for that would contradict the neutral character of IHL. It can be
assumed that non-state parties to the conflict are equally protected.96 Hence,
“armed forces” according to Article 3 GC I–IV must be understood with the same
functional categories as groups in Article 1 AP II; in particular, governmental
armed forces and organized non-state armed groups.97
5. Summary
Under the principle of distinction, and the prohibition of indiscriminate attacks,

civilians must not be attacked. Non-civilians may be directly targeted, including the
use of deadly force. Members of governmental armed forces are not civilians. In
general, the same should be applied to members of non-governmental organized
armed groups. Only members who carry out military functions on a continuous
25.04.2007, p. 73: “El término ‘combatientes’ en Derecho Internacional Humanitario tiene un

sentido genérico, y un sentido especı́fico. En su sentido genérico, el término ‘combatientes’ hace
referencia a las personas que, por formar parte de las fuerzas armadas y los grupos armados
irregulares, o tomar parte en las hostilidades, no gozan de las protecciones contra los ataques
asignadas a los civiles. En su sentido especı́fico, el término ‘combatientes’ se utiliza únicamente en
el ámbito de los conflictos armados internacionales para hacer referencia a un status especial, el
‘status de combatiente’ [. . .]”.
95
For example: Sassòli/Olsen, Admissible Killing and Internment of Fighters, p. 606.
96
Pictet, Commentary GC II, Article 3, p. 33; Pictet, Commentary GC IV, Article 3, p. 36 ff.
97
basis should not be considered civilians. Accordingly, the members who are not at
all involved in military operations, or are, but only sporadically, retain their status
as civilians. This approach is called the “functional membership approach.”98
Moreover, medical and religious personnel enjoy special protection (as long as
they exclusively perform medical or religious duties).
6. Direct Participation of Civilians in Hostilities
As mentioned earlier, Article 13.2 AP II prohibits attacks on civilians. It was said

earlier that members of organized armed groups who participate in hostilities on a
sporadic basis are considered civilians. As a matter of the principle of distinction,
they must not be attacked. However, the prohibition of attacking civilians is
restricted, according to Article 13.3 AP II:
Civilians shall enjoy the protection afforded by this Part, unless and for such time as they
take a direct part in hostilities.
Similarly, customary IHL rules that civilians are protected against attack unless
they directly take part in hostilities at the time of the attack.99
In other words, all civilians who directly take part in hostilities may be attacked.
Hence, the rule can lead to the possibility of attacking members of organized armed
groups who participate directly in hostilities on a sporadic basis, as well as any
other civilians. Hereafter, the notion “direct participation in hostilities” is analyzed.
a) The Term “Direct Participation in Hostilities”
“Direct participation in hostilities” is not defined in conventional or customary IHL.

Moreover, it seems that there is additional confusion; while Article 13.3 AP II
uses the term “direct” participation, Article 3 GC I–IV uses the term “active”
participation. However, “direct” and “active” can be used synonymously.100 An
essential argument to support this view is provided by the French version of Article
3 GC I–IV and Article 13.3, which words each as “participent directement.”
Due to the lack of this definition, it is difficult to concretize the meaning of direct
participation in hostilities. There are two extreme positions that are explained by
ICRC Commentary:
98
Melzer, Targeted Killing, pp. 327 ff, 350 ff; ICRC, Direct Participation in Hostilities – Summary
Report III, pp. 49, 59–65, 82 ff.
99
100
Junod, Commentary AP II, Article 13, } 4787 states: “The term ‘direct part in hostilities’ is
taken from common Article 3”. Affirmative Melzer, Targeted Killing, p. 334 ff; ICTR, Akayesu
Case, Case No. 96-4, Judgment 02.09.1998, } 629.
Undoubtedly there is room here for some margin of judgment: to restrict this concept
to combat and to active military operations would be too narrow, while extending it to
the entire war effort would be too broad, as in modern warfare the whole population
participates in the war effort to some extent, albeit indirectly.101
It is also said that there is a gray area that allows “direct participation” to be
interpreted too narrowly or broadly.102 Given the diverging opinions, the Israeli
Supreme Court concludes that:
In that state of affairs, and without a comprehensive and agreed upon customary standard,
there is no escaping going case by case, while narrowing the area of disagreement.103
It is obvious that each case must be assessed individually in order to decide whether
or not direct participation has occurred. The decision, however, should be based on
objective criteria in order to avoid a personal or even arbitrary conclusion.104 It is
interesting to note that there are approaches to providing elements that have to be
fulfilled in order to determine whether a direct or indirect participation has
occurred. Regarding hostile acts, ICRC Commentary states:
Hostile acts should be understood to be acts which by their nature and purpose are intended
to cause actual harm to the personnel and equipment of the armed forces.105
The Inter-American Commission on Human Rights took this statement and wrote in
its Report on Colombia (1999):
The Commission believes, therefore, that it is necessary to clarify the distinction between
“direct” or “active” and “indirect” participation by civilians in hostilities in order to identify
those limited situations where it is not unlawful to attack civilians. It is generally under-
stood in humanitarian law that the phrase “direct participation in hostilities” means acts
which, by their nature or purpose, are intended to cause actual harm to enemy personnel and
material. Such participation also suggests a “direct causal relationship between the activity
engaged in and harm done to the enemy at the time and place where the activity takes place”
[Emphasis added].106
Moreover, the ICRC published its institutional position on how existing IHL
relating to the notion of direct participation in hostilities should be interpreted in
a document entitled “Interpretive Guidance on the ‘Notion of Direct Participation in
101
Sandoz, Commentary AP I, Article 43, } 1944. Cassese, Merits of the Israeli Judgment on
Targeted Killing, p. 343, names it a “grey area”.
102
Schmitt, Direct Participation in Hostilities, p. 509, proposes a “liberal approach”.
103
Israeli High Court, Public Committee against Torture in Israel v. Government of Israel, HCJ
769/02, Judgment 13.12.2006, } 34. Similarly ICTY, Tadic Case, Case No. IT-94-1, Judgment
07.05.1997, } 616: “It is unnecessary to define exactly the line dividing those taking an active part
in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each
victim and to ascertain whether, in each individual’s circumstances, that person was actively
involved in hostilities at the relevant time”.
104
The broad and narrow interpretation often depends on the author’s view, Fenrick, Targeting
Killings, p. 336.
105
106
IACiHR, Report Colombia (1999), Chap. IV } 53.
Hostilities’ under International Humanitarian Law”.107 Ten recommendations are

provided. In particular, the following three criteria were elaborated: threshold of
harm, direct causality and belligerent nexus.
(1) Threshold of Harm

In order to qualify an act as direct participation in hostilities, the Interpretive
Guidance on Direct Participation provides a first constitutive element:
The act must be likely to adversely affect the military operations or military capacity of a
party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons
or objects protected against direct attack (threshold of harm) [. . .].108
Prior to this publication, a similar element was elaborated. The ICRC Commentary
describes direct participation as “acts which by their nature and purpose are intended
to cause actual harm to the personnel and equipment of the armed forces.”109
In order to fulfill this criterion, it must be likely that the harm will reach a certain
threshold. The threshold is reached when an act is likely to affect a military
operation or military capacity of an adverse party to the conflict, regardless of
quantitative gravity. This is given not only by killing, wounding or capturing the
military personnel or by physically and functionally destroying military objects, but
also by activities that prevent, restrict, interrupt or disturb deployment, logistical
movements and/or communication.110
When the act is not likely to affect the military operations or capacity of the
adversary, it can reach the required threshold otherwise. In this case, the act must be
likely to cause at least death, injury, or destruction. For example, an attack against a
civilian objective does not cause any military harm to the adversary; however, it can
be qualified as direct participation when it causes the aforementioned harm. This
should not be confounded with the exercise of power or authority over persons or
objects that are in physical custody or under effective territorial control. In this case,
a specific hostile act occurs only when it is likely to cause harm of a specifically
military quality.111
107
The document resulted from an expert process initiated by the ICRC and the TMC Asser
Institute in The Hague. This process is mainly based on five informal meetings that were held from
2003 to 2008 and in which 40–50 legal experts from academic, military, governmental, and non-
governmental circles participated. It was adopted by the Assembly of the ICRC on 26.02.2009.
108
ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation V, pp. 16,
46 ff.
109
110
ICRC, Direct Participation in Hostilities – Interpretive Guidance, p. 47 ff. Further examples are
provided, such as the denial of the military use of certain objects, equipment and territory; holding
captured military personnel of the adversary; clearing mines placed by the adversary; certain
electronic interferences with military computer networks; certain intelligence operations, such as
wiretapping the adversary’s high command; and transmitting targeting information during an
ongoing attack.
111
ICRC, Direct Participation in Hostilities – Interpretive Guidance, p. 49 ff.
(2) Direct Causality

The second element that constitutes direct participation according to the Interpretive
Guidance is described as follows:
There must be a direct causal link between the act and the harm likely to result either from
that act, or from a coordinated military operation of which that act constitutes an integral
part [...].112
According to the ICRC Commentary, “‘direct’ participation means acts of war

which by their nature or purpose are likely to cause actual harm to the personnel and
equipment of the enemy armed forces.”113
In the Interpretive Guidance, it is concluded that “direct” and “indirect” parti-
cipation in hostilities corresponds to “direct” and “indirect” causation of harm.
Direct causation should be understood as meaning that the harm in question must
be brought about in one causal step. In one situation, the act can cause “direct” harm,
and in another situation, it cannot. For example, driving a truck with ammunition
causes “direct” harm when it is driven to a place where it will be used immediately,
but not when it is taken to a general storage place within the conflict zone.114 In the
latter case, the delivery can be qualified as a contribution to building-up the military
capacity of a party to the conflict, and therefore does not qualify as a “direct” cause
of harm. Similarly, a voluntary human shield can be considered direct or indirect
causation of harm, depending on the circumstances. Civilians attempting to shield a
military objective by their mere presence as persons without defending themselves
further, might eventually be considered direct participation, namely in ground
operations, but not in operations involving more powerful weaponry. The shield
must lead not only to a physical, but also to a military obstacle; thus there would be
an adverse impact on the military capacity.115
Moreover, it is clarified that “direct” cause of harm must contain the collective
nature and complexity of contemporary warfare, as characterized by coordinated
military operations that involve of a number of persons who carry out different
112
51 ff.
113
Sandoz, Commentary AP I, Article 51, } 1944 and Article 43, } 1679: “Direct participation in
hostilities implies a direct causal relationship between the activity engaged in and the harm done to
the enemy at the time and the place where the activity takes place.”; Junod, Commentary AP II,
Article 13, } 4787: “It implies that there is a sufficient causal relationship between the act of
participation and its immediate consequences”. Contrary to: Keller/Forowicz, An Analysis of the
Israeli Supreme Court’s Judgment on Targeted Killing, p. 209 questions the approach as not
practicable and ineffective. However, they agree that it is more adequate for civilians participating
on a sporadic, and not on an organized, basis.
114
Schmitt, Direct Participation in Hostilities, p. 508.
115
ICRC, Direct Participation in Hostilities – Interpretive Guidance, p. 55 ff. Other examples are
provided: recruitment methods and personnel training, scientific research and design, production
of armament and equipment, or provision of general supplies and services (such as electricity, fuel,
generators, construction material, finances and financial services) outside the context of a concrete
military operation.
tasks. In these coordinated operations, all individuals participate directly; however,

only a few of them can be said to carry out activities that “directly” cause harm,
therefore meeting the required threshold. Hence, the concrete act must be seen in
conjunction with, and as an integral part of, military operations.116
(3) Belligerent Nexus

In the Interpretive Guidance, there is a third and final constitutive element of direct
participation; the act must be specifically designed to directly cause the required
threshold of harm in support of a party to the conflict and to the detriment of
another.117
This requires that the act be carried out in relation to the conflict (general nexus).
A violent act committed independently from an armed conflict is not one of direct
participation, even though the situation may have been taken advantage of;
for example, if the chaos caused by the conflict helped the independent act go
unnoticed.118
When the act is not committed independently from the armed conflict, it is
furthermore required that the act be considered one of direct participation. Hence, it
must be so close to the hostilities that it can be considered “part of it” (belligerent
nexus). This requires that it be designed to support one party, and, at the same
time, harm the other in the framework of the larger military confrontation.119
116
ICRC, Direct Participation in Hostilities – Interpretive Guidance, p 54 ff. This phenomenon is
illustrated by the example of unmanned aerial vehicles, which are operated by remote control by
computer specialists, persons illuminating the target, aircraft crews providing navigational data,
specialists controlling the firing of air-to-ground missiles, and the commanders supervising the
entire operation. Other examples are provided: identification and marking of targets, analysis and
transmission of tactical intelligence to attacking forces, and instruction and assistance given to
troops with regard to the execution of a concrete military operation.
117
58 ff.
118
The jurisdiction of the ICTY and the ICTR developed the nexus requirement of the armed conflict
as a precondition of an act to be considered as a potential war crime. ICTY, Kunarac Case, Case No.
IT-96-23 & 23/1, Judgment 12.06.2002, } 58: “The armed conflict need not have been causal to the
commission of the crime, but the existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in
which it was committed or the purpose for which it was committed.” ICTR, Rutaganda Case, Case
No. 96-3, Judgment 26.05.2003, } 570: “First, the expression ‘under the guise of the armed conflict’
does not mean simply ‘at the same time as an armed conflict’ and/or ‘in any circumstances created in
part by the armed conflict’. For example, if a non-combatant takes advantage of the lessened
effectiveness of the police in conditions of disorder created by an armed conflict to murder a
neighbour he has hated for years, that would not, without more, constitute a war crime.” Affirmative
Colombian Constitutional Court, Sentencia No. C-291/2007, 25.04.2007, p. 48 ff.
119
Melzer, Targeted Killings, p. 343 ff. ICRC, Direct Participation in Hostilities – Interpretive
Guidance, p. 60 ff. In order to illustrate the need for a cumulative requirement consisting of “support
to one party” and “harm to the other,” the example of a roadblock is provided. In one case, fleeing
refugees can block a road, with the result that one party cannot access important military sites, so that
it would be detrimental. In another case, civilians block the road in order to hider one party from
The designation of “supporting by harming” does not refer to the intention of the
individual. The subjective intent is not decisive for direct participation, since the
belligerent nexus relates to the objective purpose of the act itself. Hence, only an
“objectified” intent is decisive. This means that to determine whether the belliger-
ent nexus is given, it must be interpreted from the perspective of the operating
forces. They must take both the information available to that person and the
prevailing circumstances at that time and place into account. This must be
perceived reasonably as an activity designed to support one party to the conflict
by causing harm to another.120
(4) Preparatory and Final Measures with Regard to Direct Participation

In the aforementioned chapters, the constitutive elements of direct participation are
explained. It remains unclear under which circumstances preparatory and final
measures can be qualified as direct participation.121 The Interpretive Guidance
holds that concrete measures that are taken in preparation of the execution of a
specific act of direct participation in hostilities, as well as the deployment to and the
return from the location of its execution, constitute an integral part of that act.122
Foremost, the preparation must aim to carry out a specific act that meets the
constitutive elements of direct participation. Contrary to this, general preparation is
not sufficient enough for it to qualify as direct participation. General preparation is
often given with the aim to build up military capacity. For the preparatory measure
to be part of the specific hostile act, no temporal or geographical closure is needed.
Consequently, deployment to the location where the specific act will be executed
amounts to direct participation (even from far away). The same applies for the
return from a specific act, if the return remains an integral part of the preceding
operation.
b) Evaluation of the Three Constitutive Elements
(1) Preliminary Considerations

The work that has been done by the experts must be considered. The Interpretive
Guidance provides three elements that constitute direct participation. It seems that
the elements are based on results that had already been elaborated by scholars and
courts. However, these criteria were discussed separately, without being presented
together as comprehensive and coherent constitutive elements.
pursuing the other. While, in the first case, no direct participation is given due to the lack of support
provided to one party, in the second case, it is so since both criteria are fulfilled.
120
ICRC, Direct Participation in Hostilities – Interpretive Guidance, p. 59.
121
Article 44.3 AP I uses the term “military operation preparatory to an attack” without defining it.
122
ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation VI, pp. 17,
65 ff.
The three constitutive elements help to present the issue in comprehensive and
simple terms. At the same time, the elements seem to be complete, without the
exclusion of additional aspects. Accordingly, when a concrete case is assessed, the
three elements provide sufficient objective criteria in order to prevent an arbitrary
decision from being reached.
The working group that elaborated the Interpretive Guidance held five meet-
ings, and their discussions did not always lead to a consensus, but rather, diverging
opinions remained. The disagreements mostly regarded the interpretation of the
constitutive elements in concrete cases, but not the elements as such.123 Hence,
there is room to interpret each of the three constitutive elements. For example,
there were diverging opinions on the question of whether the threshold of harm
is reached, and whether harm is caused directly when civilians attempt to “shield”
a military objective by their mere presence as persons without further active
defence (an act as a voluntary “human shield”). However, the elements themselves
are not taken into question. Accordingly, the room to interpret should not lead
to a negation of the elements, and should, instead, stimulate a further discussion
of their clarification. The room to interpret is given due to the abstract character
of the elements. This is not only a weakness, but also a strength, as is shown
hereafter.
The abstract formulation of the constitutive elements can lead to a further
differentiation from concrete cases, which leads to more convincing guidelines.
For example, the definition about causal proximity allows for a clear distinction
between engaging in general war efforts and participating in hostilities. Accord-
ingly, it is shown that under certain circumstances, the delivery of ammunition (to
the position where it will be fired) can represent direct participation, while under
other circumstances (delivery to general storage), it does not. Conversely, a simple
list with concrete examples that indicate whether direct participation is given does
not lead to the same differentiation. The International Institute of Humanitarian
Law’s Manual on the Law of Non-International Armed Conflict also distinguishes
“active (direct) participation in hostilities from participation in the war effort” and
concludes that delivering ammunition ought to be assigned, in any case to active
participation.124 It does not distinguish between the concrete circumstances. This
lack of differentiation in the manual causes it to be less convincing than the
Interpretive Guidance.
123
In the case of voluntary human shields, according to the Guidance, the threshold of harm is
not often reached, while some experts argue contrarily; Direct Participation in Hostilities –
Interpretive Guidance, p. 57. However, the element as such of “threshold of expected harm” is
not questioned. Another matter of disagreement regarding the interpretation of the elements relates
to hostage taking, where it is questioned whether a belligerent nexus is fulfilled.
124
IIHL, Manual Non-international Armed Conflict } 1.1.2.3.
(2) Attempt to Define

The group of experts concluded that direct participation could be realized in many
different forms, through various different acts that are hard to describe in abstract
terms. Thus, they did not try to provide a definition of “direct participation.”125
Instead, the three constitutive elements were established. These can be summarized
as specific acts with a belligerent nexus, by which one party to the conflict is
supported, and another party is directly harmed. Indeed, it is surprising that the group
of experts did not attempt to formulate a definition. The constitutive elements are
formulated abstractly and do not focus on concrete examples. Therefore, the elements
can easily provide a definition of direct participation. When combining the elements,
what is given if not a definition? As is aforementioned, the three elements have been
roughly summarized, and a first step in the direction of formulating a definition has
already been taken. A more sophisticated definition can be easily elaborated from the
recommendation V of the Interpretive Guidance, where it is written:
In order to qualify as direct participation in hostilities, a specific act must meet the
following cumulative criteria:
1. The act must be likely to adversely affect the military operations or military capacity of
a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on
persons or objects protected against direct attack (threshold of harm), and
2. There must be a direct causal link between the act and the harm likely to result either
from that act, or from a coordinated military operation of which that act constitutes an
integral part (direct causation), and
3. The act must be specifically designed to directly cause the required threshold of harm in
support of a party to the conflict and to the detriment of another (belligerent nexus).
When formulating this passage in a slightly different way, the definition would be
the following: an individual participates directly in hostilities by committing a
specific act that is specifically designed to support a party to an armed conflict
and to the detriment of another party, and that is likely to cause direct harm to the
military operations or military capacity of the other party, or, alternatively, to inflict
death, injury or destruction on persons or objects not under the effective control of
the acting individual. If the act is part of a coordinated operation, it must be an
integral part.
c) Different Approaches regarding Personal Scope
Earlier, it was concluded that (at least in a non-international armed conflict),

members of organized armed groups who carry out military functions on a continu-
ous basis are excluded from the status of civilians. Consequently, they are not
protected against direct attacks. There is no need to include them in the personal
125
ICRC, Direct Participation in Hostilities – Summary Report III, p. 5.
scope of Article 13.3 AP II. Instead, the provision relates to members who do not
assume combat functions or do so only sporadically (and who are subsequently
considered civilians), as well as other civilians. Since their participation is only
sporadic, and consists of a particular action, the approach is called “specific act
approach.”126
There is a second approach that leads to different statements about personal
scope. As described earlier, some experts (who are supported by certain court
rulings127), hold that members of organized armed groups are civilians, and are
protected accordingly. In order to permit an attack against them, they propose that
the protection is suspended due to their activity, meaning their direct participation.
Consequently, the rule should apply to people who take part in hostilities not only
for a specific, act but also on a continuous basis.
This approach gives rise to some inconsistencies. Previously, it was held that
members of organized armed group are non-civilians. In addition, the term “direct
participation in hostilities” is constituted by two elements, “hostilities” and “direct
participation.” “Hostilities” always refers to the collective resort of means and
methods of warfare. It consists of many different concrete acts, and corresponds
to the total sum of hostile acts (see the definition in Section 2.B.III.1, “Conduct of
Hostilities and Law Enforcement”). “Direct participation” describes an individual’s
affiliation to hostilities to a qualified degree (“direct”). In order to participate in
hostilities, a concrete act, or better said, a specific hostile act, is required by a person
in relation to an ongoing military confrontation.128 A situation or status on its own,
such as membership, cannot constitute participation in hostilities.129 Since the
concept of “continuous” direct participation refers to the status, namely member-
ship, and not to the concrete act, the approach is not fully convincing.
d) Temporal Scope: Discontinuing the Loss of Protection
In the following section, the period of loss of protection as civilians is analyzed.

As previously concluded, there are different reasons for which a person is not
entitled to protection – it is suspended either in the case that the person is directly
participating in a hostile act, or in the case that the protection is not granted in
general, due to membership of the armed forces or an organized armed group.
Hence, regaining protection is analyzed separately.
126
127
769/02, Judgment, 13.12.2006.
128
ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation IV, pp. 16,
43 ff.
129
In other words, it implies a “to do” but not a “to be”.
(1) Civilians
The protection of civilian populations is suspended according to Article 13.3 AP
II130, “unless and for such time as they take a direct part in hostilities.” This means
that a civilian directly participating in hostilities still belongs to the civilian
population; however, his/her protection is suspended during their participation.
Before and after direct participation, the individual is protected, as previously
defined. He/she regains his/her protection. When exactly he/she regains it, is
unclear.
Certain experts propose that the length of direct participation should not
cease too quickly for individuals who have repeatedly opted in to the hostilities,
and that they should regain protection as civilians only if they have unambiguously
opted out of the hostilities. It is argued that regaining civilian protection too quickly
would open a “revolving door” for “farmers by day and fighters by night,” which,
in many cases, can lead to the misuse of the protections of civilian population.
Hence, it is considered necessary to interpret the term broadly, and proposed that the
individual be considered to be participating continuously in hostilities, committing a
chain of acts.131 It is important to note that these experts consider members of armed
groups to be civilians. However, there is no need for a broad interpretation when
following the aforementioned “functional membership approach.” Individuals who
participate in hostilities as members of organized armed groups on a continuous
basis are not protected as civilians. Accordingly, the rules in question relate only to
those individuals who participate in hostilities sporadically. Moreover, the view of
these experts is not in-line with the wording of Article 13.3 AP II. “Unless and for
such time as they take a direct part in hostilities” relates to specific acts and not to a
status, as said before. Hence, once the specific hostile act is ceased, the civilian
regains his/her protection as a civilian.132
130
The provision is recognised as part of customary IHL, Henckaerts/Doswald-Beck, Customary
IHL, Vol. I, Rule 6.
131
Schmitt, Direct Participation in Hostilities, p. 510; Watkin, Canada/United States Military
Interoperability and Humanitarian Law Issues, p. 311 ff; Watkin, Assessing proportionality,
p. 13. Affirmative: Israeli High Court, Public Committee against Torture in Israel v. Government
of Israel, HCJ 769/02, Judgment 13.12.2006, } 39: “On the other hand, a civilian who has joined a
terrorist organization which has become his ‘home’, and in the framework of his role in that
organization he commits a chain of hostilities, with short periods of rests between them, loses his
immunity from attack ‘for such time’ as he is committing the chain of acts. Indeed, regarding such
a civilian, the rest between hostilities is nothing other than preparation for the next hostile act.”
132
Junod, Commentary AP II, Article 13, } 4789: “If a civilian participates directly in hostilities, it
is clear that he will not enjoy any protection against attacks for as long as his participation lasts.
Thereafter, as he no longer presents any danger for the adversary, he may not be attacked [. . .]”;
IACiHR, Report on Colombia (1999), Chap. IV, } 55: “It is important to understand that while
these persons forfeit their immunity from direct attack while participating in hostilities, they,
nonetheless, retain their status as civilians. Unlike ordinary combatants, once they cease their
hostile acts, they can no longer be attacked, although they may be tried and punished for
all their belligerent acts.”; ICRC, Direct Participation in Hostilities – Interpretive Guidance,
Recommendation X, pp. 17, 83 ff.
(2) Members of Organized Armed Groups

A member of an organized armed group who assumes military functions does not
regain protection in the same way as a civilian. Hence, when he/she ceases the
hostile act, he/she may still be attacked. Why is this so? In the case of membership,
it is not a question of regaining civilian protection, but of regaining the status of
a civilian. The individual is not to be considered a civilian based on their
membership. In order to be considered a civilian again, the member of the
organized armed group has to leave the group.133
Some experts seem to expect to see a clear sign of disengagement through e.g.
extended non-participation or an affirmative act of withdrawal.134 It would go too
far, and be unrealistic, to expect such declaration, since it could be considered
treachery by the organized armed group from which the individual is disengaging.
In particular, in a context such as that of Colombia, reprisals against the individual
and/or his/her family might occur. Hence, conclusive behaviour should be sufficient
proof of disengagement. This would be demonstrated if the individual has been
reintegrated into civilian life, maintains physical distance from the armed group, or
no longer assumes combat functions, but rather other functions, e.g. political,
within the group.135
Previously, it was held that when an organized armed group gives a de facto
combat function to a person that leads to his/her direct participation in hostilities on
a regular basis, it should be concluded that he/she has to be considered a non-
civilian. Accordingly, de facto members engaged in the hostilities on a regular basis
regain their protection as civilians, as do other “real” members of an organized
armed group.
7. Presumption in Situations of Doubt
IHL applicable to international armed conflicts rules that “[i]n case of doubt whether a
person is a civilian, that person shall be considered to be a civilian”, Article 50.1 AP I.
The spirit and purpose of the rule is to protect civilian populations. Likewise, this is
pertinent to an international, as well as a non-international armed conflict. Hence,
it is a good argument to hold that the rule should also apply to a non-international
armed conflict.136 Conversely, there is no equivalent rule for non-international armed
conflicts, neither under treaty nor customary law.137 Thus, the rule cannot be assumed
133
See also: ICTY, Blaskic Case, Case No. IT-95-14, Judgment 29.07.2004, } 114.
134
Schmitt, Direct Participation in Hostilities, p. 510.
135
Melzer, Targeted Killing - Dissertation, p. 445 ff.
136
Junod, Commentary AP II, Article 13, } 4789: “[M]oreover, in case of doubt regarding the
status of an individual, he is presumed to be civilian.”
137
Henckaerts/Doswald-Beck, Customary IHL, Vol. I does not indicate such a rule.
to exist, despite a proposed draft at the Diplomatic Conference III.138 Melzer suggests
that, at least in IHL governing non-international armed conflict, an identified civilian
should be presumed to be protected as a civilian. Only if there is more than a mere
suspicion of direct participation, may one conclude that his/her protection is sus-
pended.139
It should be noted that this rule is completed by the principle of precautionary
measures. The question is dealt with more profoundly in Section C.V, “Precaution-
ary Measures.”
8. Summary
Under the principle of distinction and the prohibition of indiscriminate attacks,

civilians must not be attacked directly, while non-civilians may be attacked. The
latter presents a military objective. Members of organized armed groups who
exercise combat functions on a regular basis are not civilians. Due to their mem-
bership, they may be attacked, which includes killing. Other members of organized
armed groups that do not exercise combat functions (either not at all or only on a
sporadic basis) are civilians. They, and other civilians, must not be attacked, except
when they participate directly in hostilities. During their direct participation, their
protection is suspended and they may be attacked, which includes killing. Their
protection is suspended due to their activity.
In a recent sentence, the Colombian Constitutional Court seems to confound the
loss of civilian status with the suspension of protection as a civilian, stating:
For the purpose of the principle of distinction pertaining to non-international armed
conflicts, the term “civilian” relates to persons that meet the two requirements of (i) not
being a member of the armed forces or confronted irregular armed organizations and (ii) not
taking part in the hostilities, either in an individual way as a “civilian person” or “civilian
individual”, or in a collective way, as the “civilian population.”140
The Constitutional Court’s statement that an individual participating in hostilities

on an ad hoc basis would lose his/her status as a civilian is unconvincing. The status
138
The draft provided in Article 25.3: “In case of doubt as to whether a person is a civilian, he or
she shall be considered to be civilian.” See O.R. XIV, CDDH/215/Rev.1, p. 320.
139
Melzer, Targeted Killing, p. 354; ICRC, Direct Participation in Hostilities – Summary Report
III, p. 44 ff; ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation
VIII, pp. 17, 74 ff.
140
Colombian Constitutional Court, Sentencia No C-291/2007, 25.04.2007, p. 74. Unofficial
translation by the author. The official text exists only in Spanish: “Para los efectos del principio
de distinción en su aplicación a los conflictos armados internos, el término ‘civil’ se refiere a las
personas que reúnen las dos condiciones de (i) no ser miembros de las fuerzas armadas u
organizaciones armadas irregulares enfrentadas y (ii) no tomar parte en las hostilidades, sea de
manera individual como ‘personas civiles’ o ‘individuos civiles’, o de manera colectiva en tanto
‘población civil’.” The court’s definition is similar to the definition of the IHL, Manual Non-
international Armed Conflict, }} 1.1.2 f. Hence, the Manual is similarly unconvincing with regard
to this statement.
is not lost; rather, the individual’s protection as a civilian is suspended. At least the
court correctly holds that members of non-state organized armed groups are not
civilians.
Finally, in the case of doubt as to whether a person is a civilian or a combatant,
IHL pertaining to non-international armed conflict does not presume a certain
status. Conversely, if there is doubt as to whether a civilian falls under the
protection of the as civilian population, or it is suspended due to his/her direct
participation in hostilities, the protection is presumed.
III. Restrictions on the Use of Lethal Force
In Section C.II, “Principle of Distinction and Prohibition of Indiscriminate

Attacks”, it was clarified that members of organized armed groups, as well as
civilians directly participating in hostilities can be attacked, even with lethal
force. The opinion that lethal force must be avoided as much as possible has
increasingly appeared in the legal discussion. This even leads to the assumption
that operating forces should capture rather than kill. The need to restrict lethal force
is articulated, in particular, when civilians who participate directly in hostilities are
targeted. The need to follow the restriction is given when following the membership
approach. In this case, members of organized armed groups (who perform combat
functions on a regular basis) may be attacked (and killed) at any time, even in a
situation where he/she does not commit hostile acts.
In order to restrict lethal force, some authors apply human rights. Recently, one
opinion has been developed, according to which the restriction is due to IHL,
namely the principle of military necessity. Hereafter, the two approaches are
presented, and it is asked whether the respective rules are pertinent, or if there is
a more specific norm under IHL that can be applicable, namely the safeguard of a
person hors de combat.
1. Human Rights Approach
Certain scholars suggest that human rights law has an important influence on IHL.
Accordingly, the use of potentially lethal force should be governed by the principles
of necessity and proportionality. States would therefore be compelled to precede
arrests when possible, instead of using lethal force.141 The human rights approach
has entered into decisions by the Israeli Supreme Court; e.g. in the judgment The
Public Committee against Torture in Israel v. Government of Israel, the court states
141
Doswald-Beck, Right to Life in Armed Conflict, pp. 881, 891; Droege, Interplay IHL and
Human Rights, p. 348; Lubell, Human Rights, Armed Conflict, p. 749 ff; Kretzmer, Targeted
Killing, p. 171; Abresch, A Human Rights Law of Internal Armed Conflict, p. 752 ff. Other authors
disagree; cf. UCHL, Right to Life in Armed Conflict and Situation of Occupation, p. 37 ff.
that “[t]he principle of proportionality is a general principle in law. It is part of our

legal conceptualization of human rights.”142 Moreover, the court holds:
[A] civilian taking a direct part in hostilities cannot be attacked at such time as he is doing
so, if a less harmful means can be employed. In our domestic law, that rule is called for by
the principle of proportionality. Indeed, among the military means, one must choose the
means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist
taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means
which should be employed.143
The Colombian Council of State seems to have a similar human rights approach.144
One author even develops a “unified use of force rule”, pertaining to both
hostilities and law enforcement operations, according to which “military authorities
may use force against combatants [. . .] only if there is no other alternative to
inflicting injury and suffering for achieving lawful objectives, both strategic and
tactical.”145 The scholars refer to arguments given by human rights bodies, namely
the United Nations Human Rights Committee. In its communication of Guerrero v.
Colombia, it supported the view that human rights standards apply in situations
of non-international armed conflict.146 Moreover, said scholars state that IHL
governing non-international armed conflict does not provide clear rules on the status
of rebels, nor on the notion of “direct participation;” concluding that IHL does not
142
Israeli High Court, Public Committee Against Torture in Israel v. Government of Israel, HCJ
769/02, Judgment 13.12.2006, } 40 ff where it justifies its view with the ECtHR, namely the
McCann Case. However, in this case the ECtHR decides on a case that it does not consider to have
taken place in times of war.
143
769/02, Judgment 13.12.2006, } 40. The argumentation of the least-injurious alternative that is
developed by the court is criticized by Cohen/Shany, A Development of Modest Proportions, p.
310 ff. Cf. also Israeli Supreme Court, Beit Sourik Village v. Government of Israel, Judgment
30.06.2004, } 37.
144
Colombian Council of State, sentence 12.02.2004, Radicación número: 68001-23-15-000-
1994-08908-01(13952). In this decision, members of a guerrilla group (ELN) were travelling in
a public bus. When stopped at a Colombian army checkpoint, the members started to shoot at the
soldiers. The soldiers responded by using firearms. This was held unlawful by the court, arguing:
“[. . .]las circunstancias mismas en las que se produjeron los hechos, conducen a concluir que hubo
un exceso en esa reacción, y una desproporción entre el ataque de que fueron objeto los soldados y
la respuesta armada que se dirigió en contra de todas las personas que se hallaban en el interior del
automotor. - En primer lugar, tal y como se demostró en el plenario, los soldados afectados
recibieron heridas leves, producidas a dos de ellos por una onda explosiva y al tercero por un
proyectil de arma de fuego que lo lesionó en un brazo. - En segundo lugar, se trataba de dos
compañı́as antiguerrilla compuestas por 19 hombres expresamente entrenados para enfrentar y
combatir a los grupos insurgentes, debiendo conocer múltiples métodos y sistemas de asedio y
captura de sus miembros, siendo la última alternativa, su baja en combate.” The legal framework,
as applied by the court, remains unclear. However, the argument suggests that the court relied (at
least in part) on human rights standards.
145
Martin, Establishing Unified Use of Force Rule, p. 373 ff. Contrary to: Paust, Right to Life,
pp. 411 ff; Green, Reply to “Unified Use of Force Rule”, p. 427 ff.
146
UNHRC, Guerrero v. Colombia, Communication No. 45/1979.
provide rules regarding target groups. Conversely, it is so argued that human rights
law would provide unambiguous standards in situations that are under governmental
control, where the state-controlled forces are bound by human rights standards.147 In
order to illustrate a similar situation, an example of this would be a rebel fighter who
is shopping at a supermarket, where it is easy for state forces to capture him or her.148
It is certain that IHL, as far as it has been developed at this point in time, does not
give an exact answer to how members of armed groups and direct participation are
defined. However, this is due to diverging interpretations, and the lack of one,
concurred-upon view. With the publication of the Interpretive Guidance on Direct
Participation, the divergences will hopefully become narrower, thus contributing to
the development of an exact answer to these questions.
Moreover, the approach relates to situations that occur far away from the
battlefield, where state authorities have territorial control.149 However, territorial
control is often relative rather than absolute. Hence, a certain degree of control should
be sufficient. However, it remains unclear what that degree is; there is no definition of
the term “effective territorial control”. Due to the lack of a definition of this notion,
further interpretation is needed. This can easily lead to diverging views, similar to
those on qualifying members of non-state organized armed groups, and “direct
participation in hostilities”. Therefore, the argument that human rights law should
be relied upon because of the diverging interpretations of IHL is unconvincing.
Finally, there are diverging opinions on the issue of whether human rights law
binds non-governmental organized armed groups.150 Since the applicability of
human right standards to non-state actors is unsure, one might take the risk of
creating different standards for state armed forces and non-state organized armed
groups, by hastily relying on human rights standards. This could lead to frustration
on the part of states and their armed forces, which could result in their refusal
to uphold human rights standards. They might argue that if non-state actors are
not bound by these standards, neither are state armed forces. However, it is
unquestioned that IHL obliges all parties, including regular armed forces and
non-state actors.151 Hence, before applying human rights, one should first take all
the rules and principles of IHL into consideration.
147
Lubell, Human Rights, Armed Conflict, p. 749 ff; Abresch, A Human Rights Law of Internal
Armed Conflict, p. 760. See also: Kretzmer, Targeted Killing, p. 171.
148
UCHL, Right to Life in Armed Conflict and Situation of Occupation, p. 37 ff.
149
150
Against the application of human rights to non-state actors: Moir, Internal Armed Conflict,
p. 194. Contrary to: Clapham, Human Rights obligations of non-state actors.
151
This thesis does not attempt to profoundly analyze the reasons for which non-state actors are
bound by IHL. See Sierra Leone Special Court, Sam Hinga Norman Case, Case No. 2004-14-AR72
(E), Appeals Chamber, Decision 31.05.2004, } 22 ‘‘[. . .] it is well settled that all parties to an
armed conflict, whether states or non-state actors, are bound by international humanitarian law,
even though only states may become parties to international treaties”; Clapham, Human Rights
obligations of non-state actors, p. 498 ff; Sassòli/Bouvier, How does Law protect in War?, p. 266 ff.
2. Principle of Military Necessity
It seems possible to derive an exceptional restriction of the use of lethal force from
the principle of military necessity. The principle is not ruled under IHL, but a basic
rule is provided, as codified in Article 35.1 AP I:
In any armed conflict, the right of the Parties to the conflict to choose methods or means of
warfare is not unlimited.152
It is not easy to clearly define the rule’s content. Its purpose is to find a realistic balance
between the permitted measures of the means of warfare and the prohibited infliction
of unnecessary suffering, injury and destruction. As the ICRC Commentary states:
The law of armed conflict is a compromise based on a balance between military necessity,
on the one hand, and the requirements of humanity, on the other. It is customarily expressed
in the form of prohibitions which take military necessity into account.153
a) Concept and Scope of Application
The ICRC Commentary relates Article 35 AP I to the concept of military necessity.154

It defines military necessity as “the necessity for measures which are essential to attain
the goals of war, and which are lawful in accordance with the laws and customs of
war”.155 Melzer defines it similarly:
First, the kind and degree of force resorted to must be actually necessary for the achieve-
ment of a legitimate military purpose and, second, it must not otherwise be prohibited under
IHL. The general recognized purpose of the conduct of hostilities is to achieve the
submission of the enemy with a minimum of expenditure of time, life and physical
resources both on the part of the attacker and on the part of the attacked.156
152
Under customary IHL, there is a similar provision (applicable in international and non-
international armed conflict): “The use of means and methods of warfare which are of a nature
to cause superfluous injury or unnecessary suffering is prohibited.” Henckaerts/Doswald-Beck,
Customary IHL, Vol. I, Rule 70.
153
154
Rauch, Necessité Militaire, p. 211 ff: “La notion de ‘maux superflus’ n’est rien d’autre que la
formule abrégée du principe que dans l’emploi des armes l’humanité et la nécessité militaire
doivent être équilibré.”; Bothe, New Rules for Victims, p. 192 ff.
155
The Lieber Code, Article 14, provides a similar definition: “Military Necessity, as understood
by modern civilized nations, consists in the necessity of those measures which are indispensable
for securing the ends of the war, and which are lawful according to the modern law and usages of
war”. Similar: Watkin, Combatants and Unprivileged Belligerents, p. 3.
156
Melzer, Targeted Killing, p. 297. See also listed definitions that are established in different
national military codes and by the contemporary legal doctrine, p. 283 ff.
The concept of military necessity has often been used to justify abusive acts, such as
“Kriegsraison geht vor Kriegsmanier” (“the necessities of war take precedence
over the rules of war”) and “Not kennt kein Gebot” (“necessity knows no law”).
However, these concepts do not reflect the entire definition of military necessity and
disregard the restrictive component, namely, the requirement that the means and
measures are not unlimited.157 Nonetheless, IHL provides rules, taking practical
constraints into consideration, in order to allow the derogation of the norm. In order
to do so, these norms relate to military necessity. For example, Article 108 GC IV
guarantees that internees may receive individual parcels or collective shipments by
post or any other means. Under } 2, the quantity may be restricted for reasons of
military necessity. It is interesting to note that a certain degree and intensity of
military necessity is sometimes required. For example, Article 34 GC I rules that
the armed forces’ fixed medical buildings may not be diverted from their purpose,
except in cases of urgent military necessity. Other degrees are “unavoidable,”158
“absolute”159 or “imperatively demanded.”160 However, this is not to be confused
with the concept of justifying breaking the law by referring to military necessity.
The norm can only derogate when it refers to military necessity.161
Carnahan and Melzer hold that this misconception has left behind unfortunate
confusion which has led to a tendency, by many scholars, to disregard the concept
of military necessity.162 Nonetheless, IHL’s basic idea is behind the concept that
the use of force is allowed, as long as it is necessary under concrete circumstances,
and is not forbidden. Moreover, this principle is expressed in specific rules of
IHL,163 but it does not only govern these specific rules. Its scope extends to
situations that are not covered by these rules.164 Hence, military necessity is
157
Melzer, Targeted Killing, p. 280 ff. Affirmative Sandoz, Commentary AP I, Article 35, } 1386;
Carnahan, Lincoln, Lieber and the Laws of War, pp. 218, 230 ff.
158
E.g. Article 11.2 Convention for the Protection of Cultural Property in the Event of Armed
Conflict (1954), UNTS Registration No. I-3511.
159
E.g. Article 15 Hague Convention IV.
160
E.g. Article 23.1 lit. g Hague Convention IV.
161
Rauch, Necessité Militaire, p. 215 ff.
162
Carnahan, Lincoln, Lieber and the Laws of War, p. 230 ff; Melzer, Targeted Killing, p. 280 ff
who laments in FN. 220 that no mention of military necessity is made in the ICRC’s study on
customary IHL and only insufficiently by Gradam, Necessity, Proportionality and the Use of Force
by States.
163
E.g. Article 52.2 AP I: “Attacks shall be limited strictly to military objectives. In so far as
objects are concerned, military objectives are limited to those objects which by their nature,
location, purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite
military advantage.”
164
recognized as a fundamental principle of IHL.165 It is interesting to note that the

Inter-American Commission on Human Rights referred to it in its Report on
Terrorism:
In addition, notwithstanding the distinctive regimes of protection that apply to international
and non-international armed conflicts, it has been widely recognized that certain norms apply
in all armed conflicts regardless of their nature. These include the protections under common
Article 3 and their corresponding provisions under Additional Protocol II as well as:
The principle of military necessity, which justifies those measures of military violence not
forbidden by international law that are necessary and proportionate to securing the prompt
submission of the enemy with the least possible expenditure of human and economic
resources.166
b) Permissive and Restrictive Functions
The aforementioned definitions of “military necessity” consist of two components,

a restrictive and a permissive one.167
In its permissive aspect, measures that are indispensable for securing the goals of
war are permitted. Previously, in Section C.II, “Principle of Distinction and Prohi-
bition of Indiscriminate Attacks,” it was analyzed that a member of an adverse
organized armed group may be attacked, including the use of lethal force. In fact,
this permission (or, better said, non-prohibition or strong presumption) can be
derived from the concept of military necessity, namely its permissive component:
the main goal of war is military victory. In order to achieve victory, the enemy’s
military forces ought to be weakened, and therefore, attacking and killing them may
be necessary.168
The restrictive function consists of two parts.169 Firstly, the concrete act must be
lawful, i.e. not be prohibited by IHL. Accordingly, the specific norm of IHL –
prohibiting the act in question – is referred to. For example, an attack against the
civilian population may result in a military advantage, but is prohibited by a specific
norm of IHL, so that this attack does not comply with the principle of military
necessity. Secondly, the restrictive function relates to the degree of force of an act, in
a concrete situation, that is necessary to attain the goal of war. This second part of the
restrictive function is not related to a concrete norm, but, as Melzer calls it, to a
165
Rauch, Necessité Militaire, p. 211: “principe supérieur du droit de la guerre”; ICRC, Direct
Participation in Hostilities – Interpretive Guidance, p. 78 ff; Paust, Right to Life, p. 424; Nishimura
Hayashi, Martens Clause and Military Necessity, p. 142 ff.
166
IACiHR, Report on Terrorism and Human Rights (2002) } 65.
167
Melzer, Targeted Killings, p. 286 ff.
168
Rauch, Necessité Militaire, pp. 209 ff, 214; Melzer, Targeted Killing, p. 289 ff.
169
Neither Rauch, Necessité Militaire, pp. 209 ff, 214 nor Melzer, Targeted Killing, p. 289 ff
explicitly say that the restrictive function consists of two parts. They mention the requirement of
lawfulness in general, without relating it to the restrictive function, while the author adds it to the
restrictive functions. Hence, the result is similar.
“necessity-factor.”170 The ICRC Commentary calls this the maxim of “necessity is

the limit of legality,” i.e. “any violence which exceeds the minimum that is neces-
sary is unlawful [. . .].”171 Hence, the degree of force applied in the act has to be
necessary, in concreto, even though this act is not otherwise prohibited, in abstracto,
by IHL. Accordingly, the principle of military necessity prohibits acts that consist of
a degree of force unnecessary to achieve the goal of war in a concrete situation.172
c) Necessity-Factor with Regard to the Use of Lethal Force
The necessity-factor does not provide a fixed standard with regard to the degree of
force, as would a special norm. Therefore, different standards of necessity can be
required. Still, it remains unclear how far the restrictive function goes, and what it
means for the use of lethal force against a person not protected against direct
attacks. Does it prohibit the use of lethal force under certain circumstances?
Melzer, as well as the Interpretive Guidance on Direct Participation, analyze the
“necessity-factor” with regard to its consequences for the use of lethal force.173
Melzer holds that the principle of military necessity, including its restrictive
component, is already implied in the 1868 St. Petersburg Declaration, with the
result that lethal force against the enemy can be limited in certain situations. In the
declaration, it is provided “[t]hat the only legitimate object which States should
endeavour to accomplish during war is to weaken the military forces of the enemy;
[and t]hat for this purpose it is sufficient to disable the greatest possible number of
men”. Melzer emphasises the word “sufficient,” arguing that it “would have no
meaning without a corresponding requirement or necessity”. Accordingly, as he
concludes, the declaration relates the lawfulness of “disabl[ing] the greatest possible
number of men” to the degree necessary in order “to weaken the military forces of
the enemy,” resulting in a not unlimited licence to disable or to kill.174
Some experts deny that military necessity could restrict lethal force. They argue
that IHL does not know such a rule, and conclude that non-civilians (combatants)
can be attacked at any time unless they are hors de combat. This would include the
resort to lethal force.175 As stated in Section II.2, “Reasons for the Use of Lethal
Force”, treaty IHL does not provide a general permission to kill. Instead, it does not
generally forbid the use of lethal force leading to the conclusion that IHL (strongly)
presumes that killing is necessary to achieve the goal of war. Therefore, the
170
171
172
Melzer, Targeted Killings, pp. 287, 397; Rauch, Nécessité Militaire, p. 209 ff; Carnahan,
Lincoln, Lieber and the Laws of War, p. 230 ff.
173
Melzer, Targeted Killing, pp. 278 ff, 397 ff; ICRC, Direct Participation in Hostilities –
Interpretive Guidance, Recommendation IX, pp. 17, 77 ff.
174
175
ICRC, Direct Participation in Hostilities – Summary Report III, p. 46; Parks, Memorandum EO
12333, p. 3; Goldman, Monitoring Internal Armed Conflicts, p. 58 ff.
assumption that a killing would at any time be allowed under IHL is a mere
interpretation. It is not indicated that it would be based on customary IHL.176
Moreover, it mostly takes into account typical situations of war, but not atypical
situations in which the principle of military necessity could apply. If, in a certain
situation, lethal force is not indispensable to neutralizing the enemy, but a capture
would lead to the same result, and, in addition, this is obvious to the operating
forces, the situation changes. A presumption that killing is necessary no longer
exists, since it is manifest that the goals of war can also be achieved with a lower
degree of force. However, this requires that the capture can be carried out without
any additional risk to the operating forces.177 Previously, in Section C.III.1,
“Human Rights Approach,” an example has been provided: the attacked adversary
is shopping in a supermarket. In this case an atypical situation of war is provided.
It can be that the required degree of force in order to achieve his/her submission
would consist of capturing but not killing him/her. The Interpretive Guidance holds
further examples where the circumstances indicate that an attempt to capture or to
issue a warning prior to using lethal force is required, when an unarmed civilian
sitting in a restaurant using a radio or mobile phone to transmit tactical targeting
intelligence to an attacking air force, when an insurgent military commander of an
organized armed group visiting relatives inside government-controlled territory, or
when large numbers of unarmed civilians who deliberately gather on a bridge in
order to prevent the passage of governmental ground forces in pursuit of an
insurgent group. In these cases, it must always be provided that the circumstances
are such that the individual can be confronted and arrested without additional risk to
the safety of the operating forces.178
To conclude, the principle of military necessity does not provide an obligation to
“capture rather than to kill”. In certain, exceptional circumstances, however, it can
lead to the unlawfulness of a killing where it is manifestly unnecessary to use lethal
force in order to overcome the attacked one, and instead, capturing the individual or
giving him/her the chance to surrender poses no additional risk to the attacking
force. In the Interpretive Guidance, a respective recommendation is provided:
In addition to the restraints imposed by international humanitarian law on specific means
and methods of warfare, and without prejudice to further restrictions that may arise under
other applicable branches of international law, the kind and degree of force which is
permissible against persons not entitled to protection against direct attack must not exceed
what is actually necessary to accomplish a legitimate military purpose in the prevailing
circumstances.179
176
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, do not suggest so. See in particular the
statements to Rules 1 and 7.
177
Melzer, Targeted Killing, pp. 288, 397 ff; Tomuschat, Gezielte Tötungen, p. 136; Sandoz,
Commentary AP I, Article 44, } 1694 states that unarmed combatants only indirectly participating
in hostilities: “should be taken under fire only if there is no other way of neutralizing them”.
178
179
ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation IX, pp. 17,
77 ff.
3. Safeguard of a Person Hors de Combat
Members of governmental forces and organized armed groups, as well as civilians

taking a direct part in hostilities, are protected once they are placed hors de combat.
The rule has three different sources in the law of non-international armed conflict:
Article 3 GC I–IV, Article 5 AP II and customary IHL. The scope of application of
each is analyzed in the following. It seems possible that they are not identical; but
instead, that there might be some important differences between them. Once a
person has begun to be protected by a norm, the use of lethal force against him/her
is prohibited. Accordingly, the temporal scope of the rule is analyzed in more detail
using these three different sources.
a) Article 5 AP II
Article 5 AP II refers to the provisions of Article 4 AP II that prohibits violence to

life, in particular murder, with regard to persons who are deprived of their liberty
because of reasons related to the armed conflict, whether they are interned or
detained. Hence, the protection begins as soon as the person’s liberty has begun
to be restricted. According to the ICRC Commentary, this can be the case when a
person has “fallen into the power of the adverse party,”180 using the wording of
Article 4 GC III that provides:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the
following categories, who have fallen into the power of the enemy [. . .].
The link to the wording of Article 4 GC III is substantial, since Article 5 AP II was
drafted based on GC III and IV.181
There are diverging opinions on the question whether the notion “fallen into the
power” requires physical custody of the person. Those who state that physical
custody is not required emphasise that, prior to the GC III, the Geneva Convention
of 1929 applied to persons “captured” by the enemy. However, GC III 1949 uses the
different wording of “fallen into the power.” This would indicate a wider scope of
application that would not require physical custody.182 This view is unconvincing.
The different wording aims to prevent a situation in which a person who had
surrendered is refused his/her status as a prisoner of war, since he/she was not
“captured”.183 Moreover, the rules of GC III, in particular Article 12 ff GC III,
180
181
182
Sandoz, Commentary AP I, Article 41, } 1602. He does not provide a final statement on this
dispute; cf. Sandoz, Commentary AP I, Article 41, }} 1602, 1612.
183
Pictet, Commentary GC III, Article 4, p. 50.
relate to a situation of detention (similarly to the provisions regarding the internees

under GC IV), and subsequently require physical custody.184
In Article 5 AP II, it is provided that persons in physical custody are protected
from the moment of their capture, and may not be killed.
b) Article 3 GC I–IV
Article 3 GC I–IV rules that humane treatment prohibits violence to life and person,
in particular murder, to members of the armed forces who have laid down their
arms, and those placed hors de combat by sickness, wounds, detention, or any other
cause. The rule relates to the safeguard of different categories that are similar to
those under the customary rule.185 Armed forces who lay down their arms give a
clear sign of surrender. Being placed hors de combat by sickness or being wounded
causes defenceless. Detention or any other cause can relate to “being in the power”
of the adverse party. Due to the similarity between Article 3 GC I–IV and the
customary rule, it is convenient to focus on customary law in order to determine the
scope of application, in particular with regard to the moment from which a person
begins to be protected. It has to be noted that the norm not only protects members of
the governmental armed forces, but also those of non-state organized armed groups
and persons taking direct part in hostilities. (Cf. Section C.II.4.c, “Notion of
‘Armed Forces’ According to Article 3 GC I–IV”).
c) Customary Law
Customary IHL pertaining to non-international armed conflict rules:

Attacking persons who are recognized as hors de combat is prohibited. A person hors de
combat is:
(a) anyone who is in the power of an adverse party;

(b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sick-
ness; or
(c) anyone who clearly expresses an intention to surrender; provided he or she abstains
from any hostile act and does not attempt to escape.186
The customary rule corresponds to Article 41 AP I, although the article applies

solely to international armed conflicts and is based on Article 23 c of the Hague
184
See also Article 12 GC III: “Prisoners of war are in the hands of the enemy Power, but not of the
individuals or military units who have captured them”. This norm requires capture and subsequent
physical custody.
185
The customary rule is implicit in Article 3 GC I-IV, Henckaerts/Doswald-Beck, Customary
IHL, Vol. I, p. 166.
186
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 47. Affirmative Colombian
Constitutional Court Sentencia C-291/2007, 25.04.2007, pp. 78, 90.
Convention IV.187 Nonetheless, it is recognized as a customary rule, applicable in

non-international armed conflicts.188 The rule concerns members of regular armed
forces and of organized armed groups, as well as civilians, in particular those who
participate directly in hostilities (as do Article 5 AP II and Article 3 GC I–IV).189 It
details three categories of being considered hors de combat. The first is met when a
person is “in the power of the adversary”. It is often held that this category refers to
persons detained for reasons related to the conflict, such as prisoners of war in an
international armed conflict, and those protected in Article 5.1 AP II in the case of
non-international armed conflict.190 Using this view, physical custody would be
required. However, this requirement can be questioned, since the safeguard of
Article 41 AP I could be granted prior to a capture.
The drafting process of Article 41 AP I indicates that physical custody is not
required. Previously, it was stated that there are diverging opinions on whether
Article 4 GC III requires physical custody. According to the opposite view, it is not
required, and it can be subsequently concluded that a possible safeguard might start
earlier than the capture of the attacked person. According to the author’s opinion,
physical custody is required by Article 4 GC III, and protection in the provisions of
GC III starts only from the moment at which this requirement is met, and not earlier.
The diverging opinions on this matter were taking into account during the drafting
of Article 41 AP I. The ICRC Commentary holds the following on this matter:
The essential problem concerned how to create a concrete link between the moment when
an enemy soldier is no longer a combatant because he is ‘hors de combat’, and the moment
when he becomes a prisoner of war because he has “fallen into the power” of his adversary.
This precise moment is not always easy to determine exactly. [. . .] The central question was
to avoid any gap in this protection, whatever interpretation was followed.191
The Diplomatic Conference III intended to provide an earlier safeguard than the
protection granted to detained persons. This implies that a person can be recognized
as hors de combat, namely, as one being “in the power of the adversary”, even
though he/she is not yet detained, i.e. prior to a capture.192 In order to provide such a
187
Article 23 Hague Convention IV: “In addition to the prohibitions provided by special
Conventions, it is especially forbidden [. . .] (c) To kill or wound an enemy who, having laid
down his arms, or having no longer means of defence, has surrendered at discretion [. . .].”
188
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 47 argue that the rule is based on
Article 3 GC I–IV.
189
190
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 47, p. 166; Bothe, New Rules for
Victims, p. 221; Dinstein, The System of Status Groups, p. 148; Watkin, Canada/United States
Military Interoperability and Humanitarian Law Issues, p. 310; McDonald, Hors de Combat,
p. 220.
191
192
O.R. XIV, CDDH/III/SR. 29, pp. 276–285 where it is, inter alia, stated in } 30 “Mr. De Preux
(International Committee of the Red Cross) said that article 38 [. . .] was concerned with the
safeguard of an enemy hors de combat, whether or not he was actually a prisoner.” and in }} 56 ff
“Mr. Schutte (Netherlands) said [. . .in } 62. . .] His delegation was prepared to consider the
ruling, it was decided independently from the above-mentioned diverging

interpretations of Article 4 GC III that Article 41 AP I should use a different
term. While Article 4 GC III requires the attacked person has “fallen into the
power” of the adverse, or operating forces, Article 41 AP I requires the attacked
person “to be in the power” of the operating forces, in which physical custody
should not be required.193
In order to determine the temporal scope (the moment from which the person
falls within the safeguard), a definition of the term “to be in the power” of the
operating forces is needed. However, definitions are only provided by those who
exclusively refer to detainees, which diverge from the intention of the Diplomatic
Conference III. In order to elaborate a definition that takes this intention into
account, it is suggested that the second and third categories should be analyzed
first, with the aim of finding some criteria for being rendered hors de combat that
can be considered along with the interpretation of the notion “to be in the power”.
(1) Category Two: Defencelessness

Under this category, attacking an individual who is defenceless because of
unconsciousness, shipwreck, wounds or sickness is forbidden. The prohibition of
the attack is based on the incapacity of the attacked person to defend him or
herself.194 This defencelessness is conditional on said causes. No further conditions
are provided for by this norm. Hence, safeguard is only granted if defencelessness is
due to these reasons.
Article 8 AP I defines the term “shipwrecked” as persons who are in peril at sea
or in other waters, as a result of misfortune affecting them or their vessel or aircraft,
and “wounded” and “sick” as persons who are in need of medical assistance or
care.195
Defencelessness can be defined as the moment from which the operating forces
come across an incapacitated combatant who can no longer participate in hostilities.
This implies that the operating forces do not have to encounter resistance from the
attacked person.
Article 41 AP I requires that the attacked person be recognized as hors de
combat in all three categories. To be recognized as such implies that it must
be obvious to the operating forces that the attacked person has stopped his/her
participation in hostilities. Under this category, it is necessary that he/she be
extension of the definition of grave breaches given in the third Geneva Convention of 1949 [. . .] to
cover situations where combatants were hors de combat, in other words in situations in which they
found themselves just prior to being captured and becoming prisoners of war.” See also O.R. XV,
CDDH/236/Rev.1, p. 384.
193
Sandoz, Commentary AP I, Article 41, }} 1602, 1612.
194
Sandoz, Commentary AP I, Article 41, } 1620: “In fact it is not only because a person of the
adverse Party is wounded, or partially handicapped, that this obligation arises, but because he is
incapable of defending himself.”
195
Article 8.1 lit a) and b) AP I.
deemed defenceless based on the above-listed reasons, such as being in need of

medical assistance or care, being shipwrecked or unconsciousness. It is presumed
that these reasons suffice the requirement of it being easy for the operating forces to
recognize that he/she will not resist further.
(2) Category Three: Surrender

Under this category, attacking a person who clearly expresses an intention to
surrender is forbidden.
Surrender requires the attacked person to discontinue his/her participation in
hostilities, in particular, by resisting or defending him or herself.196 Surrender is not
bound by strict formalities. In general, a soldier surrenders by laying down his or
her weapons, raising his/her hands, or waving a white flag.197
Surrender and defencelessness both require that the attacked person no longer
defends him/herself, i.e. he/she does not offer further resistance. In further matters,
surrender and defencelessness differ considerably. Defencelessness implies that the
attacked individual is incapacitated from continuing in hostilities. An attacked
person who is not necessarily incapacitated and who could still be capable of
resisting, can surrender. He/she can also remain armed while surrendering.198
With regard to defencelessness, it was previously stated that this category relates
to listed reasons that objectively prove that the attacked individual will no longer
resist. The third category, however, relies on a subjective criterion: one’s intention
to surrender. Just having the intention to surrender does not indicate to the operating
forces whether the person will resist further. However, as previously stated, the rule
requires that a person must be recognized as hors de combat. Consequently, similar
to the previous category, there must also be an objective criterion, according to
which the operating forces know that they will not encounter resistance. The
criterion under this category relates to a clear expression of the intention to
surrender.
The clear expression of the intention to surrender must be obvious to the
operating forces. From this moment on, they know that the attacked person will
no longer defend him/herself, and will not resist further. In the case of a lack of
clear expression of surrender, the operating forces cannot recognize the person as
hors de combat, and accordingly, the attacked person does not fall under the
safeguard.
196
Otherwise he commits a perfidy, see Article 37.1 lit. a) AP I.
197
Sandoz, Commentary AP I, Article 41, } 1618; Henckaerts/Doswald-Beck, Customary IHL,
Vol. I, p. 168.
198
(3) Summary of Category Two and Three

While category two requires a situation where the attacked individual is defenceless,
category three is related to the attacked individual’s intention to surrender, i.e. no
longer defend oneself or resist. Thereby, the person is still capacitated to do
otherwise, namely to carry his/her weapon and use it. This capacity is irrelevant.
Instead, what matters is the clear expression of the intention to surrender (and
abstaining from any future hostile acts). Insofar this is similar to category two,
since an objective criterion is fulfilled – it is obvious to the operating forces that the
attacked person will no longer participate in hostilities.
Hence, an objective criterion is required in both categories. In addition, the
provision stipulates a similar general requirement. This general requirement consists
of “persons who are recognized as hors de combat”. The wording of Article 41 AP I
differs slightly from the rule, as is suggested by the ICRC study on customary IHL. It
rules more precisely that “a person who is recognized or who, in the circumstances,
should be recognized to be hors de combat”. It is required that there are circum-
stances, according to which the attacked individual is recognized as hors de combat.
This means that a reasonable person would consider him/her to be hors de
combat.199 Hence, there must be objective criteria that allow the operating forces
to recognize him/her as no longer participating in hostilities; thus, it must be obvious
to the operating forces that he/she will no longer defend him/herself, or resist further.
Conversely, when a reasonable person does not conclude that the latter requirement
is fulfilled, the attacked individual is not protected by the rule. Exposing the
operating forces to any additional risk due to uncertain circumstances would not
comply with the rule.
The requirement that “a person who is recognized or who, in the circumstances,
should be recognized to be hors de combat” is made clear in the second category by
the requirement that the attacked individual is defenceless due to the reasons listed.
Similarly, this is made clear by the third category, with the clear expression of the
intention to surrender.
Moreover, the protection under both categories starts prior to an attacked
individual’s capture. A combatant who is defenceless and in need of medical
care, or who has given a clear sign of surrender has not yet been apprehended by
the operating forces. Nonetheless, his/her protection has already begun.
(4) Category One: To Be in the Power of the Adverse Party

Under this category, attacking an individual who is in the power of the adverse
party, thus, the operating forces, is forbidden. A definition of the term is not
provided. At least the analysis of category two and three could provide some
objective criteria, namely defencelessness and a clear expression of the intention
to surrender. Accordingly, the operating forces have to recognize the attacked
199
individual(s) as hors de combat. This must be due to the objective criterion “to be in
the power”.
Foremost, the analysis of category two and three indicates that the safeguard can
be granted prior to a capture. Hence, physical custody is not required. Moreover, a
situation in which the person is incapacitated to continue his/her participation in
hostilities does not seem to be required. It might occur in a situation in which,
despite the capacity to do so (as in category three), the operating forces recognize
the attacked person as one who will discontinue his/her participation in hostilities,
and thus, will no longer defend himself and no longer resist.
One may even question whether a specified objective criterion is required. As
stated before, the requirements of “defencelessness” in category two, and “clear
expression of intention to surrender” only clarify the general requirement of the rule
that the person is recognized or should be recognized as hors de combat. In the first
category, no specific objective criterion would be needed when the person recog-
nized as hors de combat is simultaneously in the power of the adverse, operating
party. In this case, any objective criterion that allows the operating forces to
recognize the attacked individual as discontinuing his or her participation in
hostilities, thus, no longer defending him or herself, and not resisting further,
would suffice. Hence, the term “to be in the power” could be broad in scope. In
the following, it is assessed if one can rightly assume so.
The ICRC Commentary does not suggest any objective criterion that must be
fulfilled in category one. Instead, it provides two main examples of when a person is
considered to be in the power of the adverse party. They are analyzed hereafter with
the purpose of assessing whether any criterion suffices that allows the operating
forces to recognize the attacked individual as discontinuing his or her participation
in hostilities; thus, no longer defending him or herself, and not resisting further. The
first example is:
The same applies to any unarmed soldier, whether he is surprised in his sleep by the
adversary, on leave or in any other similar situation.200
Analyzing the example, it is interesting to note that the soldier is unarmed, and far
from the battlefield. He or she is not currently participating in hostilities. The
circumstances are such that it is obvious to the operating forces that the attacked
person is hors de combat, since he or she is incapacitated to offer resistance. As he/
she is defenceless, this example is similar to the cases in category two. However,
since his or her defencelessness is not due to the reasons listed in this category, he or
she is not protected by it. Therefore, the ICRC Commentary suggests that the
safeguard should be granted by the first category.
Protection by category one, due to being incapacitated to participate in hostilities,
is appropriate only if the reasons for the incapacity are obvious to the operating
forces. If this requirement is met, there is no further need to relate the defencelessness
exclusively to the reasons listed in category two, such as being unconsciousness,

200
shipwrecked, wounded, or sick. If one excluded further reasons of the incapacity to

participate in hostilities in category one, this would lead to undesirable situations.
For example, a person who is armed but defenceless because he or she needs medical
care falls under the safeguard, while an unarmed, and thus defenceless, soldier
(maybe also wounded, but not in need of medical care or assistance) would not be
protected. An unconscious soldier (who is severely wounded and has a weapon
laying next to him or her) falls under the safeguard, but a sleeping soldier (who might
be slightly wounded) without having a weapon next to him or her would not be
protected. In order to avoid these undesirable differences, the safeguard should be
granted by the first category.
The objective criterion in category one should include cases of an obvious
incapacity to participate in hostilities, i.e. defencelessness for any reason. This
interpretation would comply with Article 23.1 lit c) Hague Convention IV, where
the killing or wounding of an enemy is prohibited inter alia when the enemy no
longer has a “means of defence”. This provision does not mandate that defenceless-
ness be due to one of the reasons listed, as is the case in category two. Any reason
leading to defencelessness suffices. It is required that the defencelessness be obvious
to the operating forces. Article 3 GC I–IV also suggests a broad interpretation of
becoming hors de combat due to “any other cause”.
The ICRC Commentary describes another situation where an attacked person is
considered to be in the power of the adversary:
In other cases land forces might have the adversary at their mercy by means of overwhelmingly
superior firing power to the point where they can force the adversary to cease combat. A formal
surrender is not always realistically possible, as the rules of some armies purely and simply
prohibit any form of surrender, even when all means of defence have been exhausted. A
defenceless adversary is ‘hors de combat’ whether or not he has laid down arms.201
Contrary to the previous example, in this situation, the attacked group is not entirely
incapacitated to defend itself. It is armed, and therefore, at a minimum, a low degree
of resistance is possible. As held earlier, the capacity to continue in hostilities does
not hinder an individual from falling under the safeguard. In particular, category
three provides a similar situation. However, whether this can also be the case in
category one still has to be analyzed.
In this example, the overwhelmingly superior operating forces are about to
defeat a group of soldiers. Hence, the attacked soldiers are at their mercy. However,
the fact that the operating forces will defeat the group does not necessarily lead to
the assumption that all means of defence have been exhausted. In fact, the attacked
group could have several reactions. They could surrender, but this possibility has
already been excluded from this example. Another option is that they remain
passive and do not resist further, i.e. discontinue their participation in hostilities.
Finally, they could continue to fight, despite their hopeless situation. In order to fall
under the safeguard of category one, it is required that the attacked individual be
recognized, or should be recognized, as hors de combat. Therefore, it must be
201
obvious to the operating forces that the group of soldiers will no longer defend itself
or resist further. It is not obvious to the operating forces how the attacked group will
react per se. Only further circumstances can provide a definite answer. For exam-
ple, in a context in which the soldiers and even the civilian population have become
fanatical, the attacked ones might resist, despite having lost all hope of victory
(such behaviour was often shown by German, and even more often, by Japanese
soldiers towards the end of World War II.) When the operating forces can expect a
reasonable reaction from the attacked individuals, they can be considered to be “in
their power.” However, a reasonable reaction would be to surrender. Therefore, it is
a theoretical possibility that they neither surrender nor continue to resist. Nonethe-
less, this example indicates that an attacked individual can have the capacity to
continue his/her participation in hostilities, but nonetheless be considered “in the
power” of the operating forces.202
A further example (not provided by the ICRC Commentary) illustrates that
category one does not require incapacity to continue in hostilities. Consider an
unarmed individual who is transmitting information of military relevance over
radio to a party to the conflict, and the opposing operating forces can easily capture
him/her in the area. In this case, he/she is able to continue his/her participation in
hostilities, as he/she can continue to transmit the information. He/she would be hors
de combat if it is obvious to the operating forces that he/she is unarmed (thus
can easily be captured), and that he/she will discontinue his/her participation in
hostilities. It is required that the operating forces do not encounter resistance, and,
in addition, they are not exposed to any additional risk due to uncertain circum-
stances. If the circumstances are such that the requirements are met, the individual
must be recognized as hors de combat, and thus must not be killed.
At this stage, it could be confirmed that under category one, any criterion
suffices that allows the operating forces to recognize the attacked individual as
discontinuing his or her participation in hostilities, thus, is no longer defending him/
herself, and not resisting further. In the following, it is assessed whether there are
arguments against this assumption.
(i) The Traditional View of the Legal Doctrine

As held earlier, the legal doctrine refers to those “in the power of the adverse party”
who have been detained or interned in relation to the armed conflict. For example,
Dinstein holds:
[A] combatant becomes hors de combat, either by choice (through surrender) or by force of
circumstances (having become wounded, sick or shipwrecked).203
202
Contrary to: Watkin, Canada/United States Military Interoperability and Humanitarian Law
Issues, p. 310.
203
Dinstein, The System of Status Groups, p. 148. Affirmative: McDonald, Hors de Combat,
p. 220: “Paragraph 2(a) refers to prisoners, whether wounded or sick or well [. . .].”; and Watkin,
Canada/United States Military Interoperability and Humanitarian Law Issues, p. 310 referring to
The elements he provides – choice and force of circumstances – differ from the
previously analyzed objective criteria that allow the operating forces to recognize
that the attacked individual or individuals will discontinue their participation in
hostilities. He does not even mention the first category, “to be in the power” of the
operating forces. The conclusions of his view are consequent, since according to
his definition, which requires physical custody, the safeguard under this category
overlaps with the protection granted under GC III. Following his definition, there
would be no need for the first category.204 However, it is unconvincing that
a category was created which does not provide further ruling. In addition, it
contradicts the intention of the Diplomatic Conference III to provide a safeguard
prior to a capture.
Elsewhere, Dinstein states:
It is sometimes contended that when an army has been routed, and its soldiers are retreating
in disarray—as epitomized by the Iraqi land forces during the Gulf War—they should not
be further attacked. But this is a serious misconception. The only way for members of the
armed forces to immunize themselves from further attack is to surrender, thereby becoming
hors de combat. Otherwise, as the Gulf War amply demonstrates, the fleeing soldiers of
today are likely to regroup tomorrow as viable military units.205
Foremost, in this statement, Dinstein holds that only surrender can place an attacked
person hors de combat. He does not even mention defencelessness due to various
reasons, as does the previous statement. Dinstein’s example has elements in
common with those exposed in the ICRC Commentary (when a party to the conflict
with overwhelmingly superior firing power has its adversary at its mercy). Contrary
to the commentary, Dinstein concludes that the attacked group does not fall under
the safeguard. He argues that the prohibition of an attack would lead to the group’s
fleeing, which could result in their eventual regrouping and fighting in further
conflicts. His argument is unconvincing. The prohibition of attack does not impose
total passivity on the operating forces, which would allow the attacked group to
escape. Already in the proviso regarding the safeguard, it is ruled that the attacked
individual must not attempt to escape. Moreover, the prohibition of “attack” in the
safeguard does not necessarily mean that capture is also prohibited, as it is analyzed
in the following section.
Therefore, it is indicated that the view of traditional legal doctrine is too
restrictive.
ICTY, Blaskic Case, Case No. IT-95-14, Judgment 29.07.2004, } 114: “If he is indeed a member of
an armed organization, the fact that he is not armed or in combat at the time of the commission of
crimes, does not accord him civilian status.” This is misleading, since it is not a question of civilian
status, but of the safeguard of being hors de combat. Diverging opinion: Sandoz, Commentary AP
I, Article 41, }} 1601 ff.
204
This is suggested by Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 47, p. 166,
stating: “Respect for persons who are in the power of an adverse party is a cornerstone of
international humanitarian law [. . .]. Practice, therefore, focuses rather on treatment to be given
to such persons (see chapters 32 and 37)”.
205
Dinstein, Legitimate Military Objectives, p. 15.
(ii) Test of Practicability of the Proposed Definition

So far, it has been assumed that, under category one, any objective criterion
suffices that allows the person to be recognized as one who will discontinue his/
her participation in hostilities. This is only convincing if it is practicable. This
means that it is required that the operating forces can base their decision on this
definition, taking into account the particularities that arise during military opera-
tions. The particularities mainly consist of the need to make quick decisions in
order to prevent irreversible damage, such as being killed. Accordingly, the choice
to discontinue an attack may not result in additional risk. Instead, this kind of
decision can only be made when the attacking forces are sure of the situation. The
suggested definition requires that the attacked individuals can be obviously recog-
nized as no longer defending themselves or resisting. As the situation must be
obvious, the operating forces can make a rapid decision without taking on addi-
tional risk.
In the suggested assumption, however, the reason for which it is obvious that the
person can be recognized as becoming hors de combat is not specified as it is in
category two (defencelessness due to one of the listed reasons). Any reason suffices,
as long as it leads to an obvious and clear situation. The lack of a specific reason
does not lead to additional burden on the operating forces that they have to make a
decision. On the contrary, this can even facilitate an analysis of the situation, and
subsequently, a conclusion as to whether the attacked individual falls within the
safeguard. For example, when an armed group comes across a soldier lying on the
ground who is obviously defenceless and it remains unclear whether he or she is
sleeping or unconscious. This difference does not matter in the suggested assump-
tion. Similarly, the armed group can draw the conclusion more easily that the
safeguard is granted when the attacked person is wounded and obviously defence-
less, but it still remains unclear whether he/she is in need of medical care, or if,
according to one operating soldier, the attacked person – who obviously has no
means of defence – has clearly signalled his intent to surrender, while according to a
second soldier, the attacked individual did not. Hence, the suggested assumption
does not present a burden to the praxis.
Before providing a final definition of being “in the power of the adversary,” the
meaning of “attack” in the safeguards and the proviso regarding the safeguards
should be analyzed. This analysis may lead to further conclusions that ought to be
taken into consideration in the definition.
(5) Meaning of “Attack” under the Safeguard

An individual who is hors de combat must not be attacked. Article 49.1 AP I defines
attacks as “acts of violence against the adversary, whether in offence or in defence”.
The definition is broad, and is related to combat actions, i.e. any kind of use of
armed force carried out during a military operation.206 Arrest is also a combat
206
Sandoz, Commentary AP I, Article 49, }} 1880, 1882.
action, and would fall under this definition. However, it would be absurd and
contradictory to the purpose of the rule to assume that the prohibition of the attack
of persons rendered hors de combat would mean that the operating forces must not
precede arrests. For example, if a person who surrenders is still not apprehended,
however it is obvious that the operating forces have the right to do everything in
their power in order to take him/her into physical custody. It is also the case with an
unconscious, shipwrecked, wounded or sick individual.207 Moreover, if one
assumed that arrest is excluded, the proviso regarding safeguard would have no
meaning. The proviso rules that the attacked individual must not attempt to escape.
This implies that the operating forces are allowed to take the person into physical
custody in order to assure that the person will stay hors de combat and not be
enabled to fight later on.
Hence, the meaning of “attack” in this rule is not as broad as it is in Article 49.1
AP I, but it must be restricted according to the purpose of the rule. The purpose of
the rule is to protect the life and personal integrity of the attacked person. Hence, the
prohibition of attack means, above all, the prohibition of killing and inflicting
injuries. This corresponds to the prohibition of violence against life, in particular
murder, in Article 4, 5 AP II and Article 3 GC I–IV.208
Moreover, it was recognized during the drafting process that the provision
endeavours to protect life and limb. Nonetheless, it was decided that different
wording than “to kill and to injure” should be used. Instead, the term “to attack”
was chosen, despite the previously discussed inconsistency of the term. It was
chosen for two reasons. Foremost, it was assumed that in order to ill treat (or injure)
an attacked individual, the latter must be in the hands of the operating forces; thus,
in physical custody. However, this is not necessarily the case in Article 41 AP I, in
particular in the case that a person expresses his/her intention to surrender.209
Moreover, the Original Records state that:
This chance was designed to make clear that what was forbidden was the deliberate attack
against persons hors de combat, not merely killing and injuring them as the incidental
consequence of attacks not aimed at them per se.210
Accordingly, the safeguard does not prohibit killing, but any deliberate attack. It
seems that the intention of the Diplomatic Conference III was to create a more
sophisticated rule, according to which a series of measures can be allowed or
forbidden according to the circumstances. In order to find out what they are, it is
interesting to note that when, in a typical situation, killing is forbidden but capture
is allowed, it is mandatory that the operating units use a certain lower degree of
force. Hence, in order to determine whether a measure is deliberate, it is appropriate
207
Pilloud, Prisoners of War, p. 168 ff.
208
In other IHL conventions, a similar safeguard is provided. However, instead of the notion of
“attack,” other wording is used, such as “killing”, “wounding” (Article 23.1 lit. c Hague Conven-
tion IV) and “attempts upon their lives, or violence to their persons” (Article 12 } 2 GC I, II).
209
O.R. XIV, CDDH/III/SR. 29, pp. 276–285.
210
O.R. XV, CDDH/236/Rev.1, p. 384.
to rely on the principle of military necessity, since the necessity-factor provides the
pertinent ruling (see Section C.III.2.c, “Necessity-factor with Regard to the Use of
Lethal Force”).
(6) The Proviso regarding the Safeguard

It is evident that a person rendered hors de combat can be recognized as such, as
long as he/she discontinues his/her participation in hostilities. A person who
suddenly resumes his/her participation is, as a matter of definition, not hors de
combat. Subsequently, Article 41 AP I rules the proviso. If the attacked individual
does not abstain from all hostile acts, or attempts to escape, the operating forces
have the right to take countermeasures to ensure that he/she returns to the status of
hors de combat.211
It is not yet determined which kind of countermeasures can be taken. However, it
seems to have been taken into account that under the safeguard, “attack” relates to a
certain degree of force. Previously, it was stated that, most likely, the only kind and
degree of force that should be allowed is that which is indispensable to maintaining
the person hors de combat with the minimum expenditure of time, life and physical
resources (on both sides, the attacker and the attacked). There are further indications
that the necessity-factor has to be taken into consideration.
The proviso regarding the safeguard is formulated as an exception. This is of
relevance because it indicates that IHL presumes that an attack is unnecessary when
the person is rendered hors de combat. Only in the exceptional case that the proviso
is given is an attack allowed.
The proviso distinguishes between two cases, namely, escape and participation in
any hostile act. In the case of the escape of prisoners of war, Article 42 GC III rules:
The use of weapons against prisoners of war, especially against those who are escaping or
attempting to escape, shall constitute an extreme measure, which shall always be preceded
by warnings appropriate to the circumstances.212
“Extreme measure” indicates that the operating forces have to use a certain
degree of force in order to prevent attempted escape. Hence, the necessity-factor
determines the degree of force that is allowed. It is appropriate to have a similar
standard of force in the proviso since the situations are comparable. Similarly, in
cases other than escape, i.e. if the attacked person participates (again) in hostile
acts, the necessity-factor has a determining function.213 Accordingly, resorting to
lethal force can be unlawful if there are other means available to stop the hostile
acts, without exposing the operating forces to additional risk by attempting to arrest
the individual instead of killing him/her. Previously, an example was provided of
unarmed individuals transmitting information about military targets by radio to a
211
212
Additional specials rules for the case of an escape are provided in Article 91-94 GC III.
213
party to the conflict. It was concluded that if it were easy for the operating forces to
capture him/her without taking an additional risk, killing would be unlawful. In the
case that the individual continues to transmit information, he/she does not abstain
from hostile acts and accordingly, the operating forces may attack him/her. How-
ever, as the necessity-factor determines the degree of force used in the attack,
killing could be unlawful under the proviso of the safeguard. Only the degree of
force that is necessary to definitely place him/her hors de combat is allowed. If this
can be achieved by other means, in particular by giving him/her a chance to
surrender or by arresting him/her, lethal force would be prohibited. This requires
that it be obvious to the operating forces. Conversely, if only a killing can stop him/
her, or if the use of a lower degree of force than killing could expose the operating
forces to additional risk, killing the attacked person would be allowed.
(7) Summary and Definition of “to Be in the Power”

It has been assumed that under category one, any objective criterion suffices that
allows the person to be recognized as one who will discontinue his/her participation
in hostilities. Now a detailed definition is provided.
The analysis of the safeguard provided the elements necessary to define the
meaning of “to be in the power of the adversary”. This category, similar to the
second and third, requires that the operating forces be able to recognize the attacked
individual as hors de combat. This implies that he/she will no longer participate in
hostilities, in particular, no longer defend him/herself, or continue to resist. Different
from the second and third categories, in the first category, no criterion is specified.
Any criterion suffices that would lead a reasonable person to conclude that the
attacked person will no longer participate in hostilities. The prohibition of attack
means that the only kind and degree of force that is allowed must be indispensable
to maintaining the attacked individual as hors de combat with the minimum
expenditure of time, life and physical resources. At the same time, the operating
forces must not be exposed to any additional risk due to an unclear situation, or
because they use a lesser degree of force, e.g. they arrest the attacked person instead
of killing him/her. When the latter requirement is not reasonably met, the attacked
person cannot be considered to be “in the power” of the operating forces, and thus
killing would be allowed.
The interpretation complies with the intention, expressed during the drafting
process, of creating a safeguard “just prior to a capture” (historic argument). In
addition, it is in line with the wording (“to be in the power,” and not “to have fallen
into the power,” of the operating forces), as well as with the other two categories,
which grant the safeguard at an early moment, i.e. prior to the capture (systematic
argument), and, finally, with the provision’s purpose of granting an effective
protection to the attacked person who no longer participates in hostilities.
In category one, no objective criterion is specified that leads to a broad field of
application, whereas in category two and three, objective criteria must be fulfilled.
Subsequently, cases that fall under category two and three must also fall under
category one. Hence, category two and three are lex specialis.
As stated earlier, Article 3 GC I–IV provides similar rules, in particular, a

recognition that a person can be rendered hors de combat by any reason. It is
appropriate that the interpretation of Article 3 GC I–IV overtakes the interpretation
of Article 41 AP I. Hence, under both provisions, an attacked person can be
protected prior to their capture. Conversely, Article 5 AP II requires physical
custody. Hence, its field of application is narrower than the aforementioned
rules.214
4. Relationship Between Hors de Combat and Military Necessity
The safeguard of Article 41 AP I provides a special protection in exceptional

circumstances where a person should be recognized as hors de combat. The
principle of military necessity does not consider this special protection. Instead it
assumes that the person is still a military target. Conversely, the degree of force is
restricted and therefore seems to be different than the safeguard. However, the
safeguard hors de combat does not simply prohibit an attack (a capture still is
allowed) and consequently asks for a certain degree of force that is determined by
the necessity-factor. This necessarily leads to the same result as if one were to apply
the principle of military necessity directly in order to restrict lethal force. This has
been indicated by the provided examples. Therefore, the relationship between the
two should be clarified.
In Section C.III.2.b, “Permissive and Restrictive Functions,” it was concluded
that the restrictive component under the principle of military necessity consists of
two elements. The first relates to a specific norm that may not prohibit the specific
act, and the second, to the “necessity-factor”. Thus, the principle asks for a specific
rule that prohibits the special act under IHL. The safeguard of a person hors de
combat could be such a specific rule.
Rauch does not give an answer to the question about the relationship between
military necessity and further rules. Instead, he holds that the principle of military
necessity can be a constitutive element of specific norms. In particular, he names the
prohibition to kill or wound an enemy, who, having laid down his or her arms, or no
longer has a means of defence, has surrendered at discretion, according to Article
23.1 lit c) Hague Convention IV, as well as the prohibition on attacking a person
placed hors de combat by Article 41 AP I.215 Hence, the principle of military
necessity is clarified in the safeguard of a person hors de combat. This indicates
that the latter is lex specialis in relation to the principle of military necessity.
Accordingly, the safeguard should be applied first, not the principle of military
necessity.
214
Article 5 AP II corresponds to the protection of prisoners of war in GC III (with the difference
that the first pertains to a non-international armed conflict, and the latter to an international
conflict); thus, one may conclude that Article 5 AP II does not rule the safeguard of persons
hors de combat, but rather the special protection of persons who are deprived of their freedom.
215
Rauch, Necessité Militaire, pp. 211, 219.
It can be noted that in scholars’ recent publications regarding the restriction

of lethal force, the safeguard of a person hors de combat is only mentioned rarely.
Namely Melzer and the Interpretive Guidance on Direct Participation rely
exclusively on the principle of military necessity, and do not develop further
considerations with regard to the safeguard.216 Nonetheless, it is admirable that
Melzer emphasized the existence of the principle of military necessity. The princi-
ple is an autonomous rule, i.e. it can be applied to every act in order to assess its
legality. This can lead to a restriction on the use of force. With regard to the use of
lethal force, the principle does not apply, since the safeguard of a person hors de
combat applies as the more specific rule. However, the principle, namely the
necessity-factor, has to be taken into account in order to determine the degree of
force that is allowed under the safeguard. Furthermore, in cases other than the
restriction of lethal force, the principle of military necessity might be applied
directly in absence of specific norms.217
5. Conclusion
In Section C.II, “The Principle of Distinction and the Prohibition of Indiscriminate

Attacks,” it was concluded that IHL strongly presumes that resorting to the use of
lethal force against military targets, such as members of non-state organized armed
groups and civilians directly participating in hostilities, is necessary. As an exception,
IHL presumes that, in circumstances where a person should be recognized as hors de
combat, killing that person is unnecessary. The safeguard’s first category requires that
the attacked person “be in the power” of the operating forces, which suggests a broad
interpretation. Any objective criterion suffices that makes it obvious to the operating
forces that the person will no longer defend him/herself, and will not continue to resist.
In such a situation, the operating forces may resort to force, whereby the degree of
force is determined by the necessity-factor. A lower degree of force may not expose
the operating forces to an increased risk.
It still should be noted that the restriction on lethal force does not provide
different standards for members of armed forces (or organized armed groups),
and civilians directly participating in hostilities.
Finally, it is worth making a short comparison between the human rights
approach and the safeguard. The example provided that underlines the need for a
restriction of the potential use of lethal force under human rights, as was that of an
unarmed soldier shopping in a supermarket. The soldier falls under the safeguard,
216
Melzer, Targeted Killing, p. 288 mentions hors de combat without further statement; ICRC,
Direct Participation in Hostilities – Interpretive Guidance, p. 77 ff.
217
For example, a restriction on the free circulation of food and other goods imposed by a party to
the conflict on the civilian population is not necessarily prohibited under IHL. If the restriction
causes starvation, it is prohibited under Article 54 AP I. However, there is no special prohibition
with regard to further possible sequences, such as an increase in prices, jeopardizing economic
security or jobs, etc. It would be interesting to assess if and how far the principle of military
necessity provides a restrictive ruling in this case.
category one. He/she is “in the power” of the operating forces due to his/her
incapacity to continue in hostilities. This is obvious to the operating forces, thus
capturing the soldier would not cause them additional risk. This indicates that the
field of application might be similar.
While the human rights approach requires a situation that is under the effective or
sufficient control of the operating forces, the safeguard of Article 41 AP I does not. It
is unrelated to situations that are far from the battlefield. Hence, it seems to have an
even broader field of application than the human rights approach. Consequently, it is
indicated that there is no need to rely on human rights in order to provide a
restriction on the potential use of lethal force, for IHL offers sufficient legal basis.
IV. Principle of Proportionality
In treaty IHL, the term “proportionality” does not appear explicitly; however,
several provisions rule the principle.218 The principle has become part of customary
IHL pertaining to non-international armed conflicts and is defined as:
Launching an attack which may be expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof, which would be excessive
in relation to the concrete and direct military advantage anticipated, is prohibited.219
Several authors consider the principle of military necessity to be the source of

proportionality.220 The principle of proportionality attempts to find a balance
between the military advantages achieved by an attack on the one hand and
collateral damage among civilian population and civilian objects caused by the
same attack on the other.221
The principle relates to attacks that are directed against military objects, i.e.
persons and/or objects that are not protected against direct attacks. Hence, under the
principle of distinction, one may not conclude that they are unlawful, but rather
legitimate.222 However, the attacks (are likely to) cause collateral damage of
persons and/or objects that are protected against direct attacks. Damaging protected
persons and objects may occur e.g. due to physical proximity to the military target.
218
Article 51 [5] (b) AP I rules: “Among others, the following types of attacks are to be considered
as indiscriminate: an attack which may be expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated.” Cf. also Article 57 [2] AP I.
219
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 14. Affirmative Colombian
Constitutional Court Sentencia No. C-291/2007, 25.04.2007, pp. 61 ff, 90 ff.
220
Bothe, New Rules for Victims, p. 192 ff; Rauch, Nécessité Militaire, p. 213 ff. Gardam, Necessity,
Proportionality and Use of Force, p. 28 ff, where she describes the historical development of the
principle of necessity turning into the principle of proportionality.
221
Gardam, Necessity, Proportionality and Use of Force, p. 85
222
Article 51 [5] defines them “indiscriminate attacks”. The attribute “indiscriminate” is unfortunate
for systematic reasons, since the attacks are directed against military targets. Melzer, Targeted
Killings, p. 358.
If the protected persons and objects are harmed, and this is (likely to be) excessive
compared to the military advantage of the attack, the attack itself becomes illegiti-
mate. Hence, the principle of proportionality aims to protect the civilian population
and civilian objects, as does the principle of distinction.223
There is not a definition of the term “excessive,” nor are there objective
standards that clarify the term. In order to determine what “excessive” means,
one must be reminded that the purpose of the principle is to strike a balance between
military advantage and collateral damage. Consequently, the military advantage has
to be related to collateral damage. This balance is quite difficult because it is a
matter of distinctive values that cannot be meaningfully compared, except in
extreme cases.224 Relating these values to each other and balancing them suggests
that excess is relative, and there is neither an absolute benchmark, nor is excess
quantifiable to a fixed number of civilian casualties or injuries.225 Accordingly, the
balance has to be performed on a case-by-case basis. In the assessment, one can
conclude that targets of high value might justify greater harm to protected persons
and objects than military targets of less importance.226
When determining the military advantage, the one that can reasonably be
expected before launching the operation has to be taken into consideration and
not the one that has afterwards proven to be so. (See Section C.V.2, “Precautionary
Measures with Regard to the Principle of Proportionality”.)
V. Precautionary Measures
Treaty IHL governing non-international armed conflicts does not oblige the parties to
the conflict to take precautionary measures. In order to allow the different rules
mentioned earlier (in particular the principles of distinction and proportionality) to
materialize, it is crucial that care is taken, at first, during the planning stages, and
finally, during the operations. Accordingly, Additional Protocol I provides different
rules regarding precautions that can be considered to be one of the most significant
provisions in the Protocol.227 The high relevance of these provisions also explains
their customary nature in both international and non-international armed conflicts.228
Its general rule can be formulated as:
223
Gardam, Necessity, Proportionality and Use of Force, p. 94.
224
Schmitt, War, Technology, and IHL, p. 51; Watkin, Assessing Proportionality, p. 31.
225
Goldman, Monitoring Internal Armed Conflicts, p. 81.
226
Melzer, Targeted Killings, p. 362. Gardam, Necessity, Proportionality and Use of Force,
p. 102 ff.
227
Watkin, Assessing Proportionality, p. 23.
228
ICTY, Kuprescic Case, Case No. IT-95-16, Judgment 14.01.2000, } 524: “In the case of attacks
on military objectives causing damage to civilians, international law contains a general principle
prescribing that reasonable care must be taken in attacking military objectives so that civilians are
not needlessly injured through carelessness.” Affirmative: Melzer, Targeted Killings, p. 364;
In the conduct of military operations, constant care must be taken to spare the civilian
population, civilians and civilian objects. All feasible precautions must be taken to avoid,
and in any event to minimize, incidental loss of civilian life, injury to civilians and damage
to civilian objects.229
1. Precautionary Measures with regard to the Principle of Distinction
Precautionary measures have to be taken in order to assure the principle of

distinction. Customary IHL governing non-international armed conflicts provides:
Each party to the conflict must do everything feasible to verify that targets are military
objectives as well as to cancel or suspend an attack if it becomes apparent that the target is
not a military objective.230
This has important consequences for operations in which a group or an individual is

targeted. It has to be verified whether the group or individual presents a military
target (which is given if the targeted individual belongs to an organized armed
group or participates directly in hostilities). As said before, in general, it is often
difficult to distinguish between civilians and non-civilians, such as members of
organized armed groups, in particular within the Colombian context. Nonetheless,
the precautionary rules oblige the operating forces to take measures to verify the
nature of the target, a task often carried out by intelligence. Hence, its role and legal
obligation is very important. Thereby, it still has to be clarified to what degree the
verification is required.
The aforementioned rule requires that the parties to the conflict “must do
everything feasible to verify” their targets. The term “feasible” remains undefined
in this context; however a definition exists in conventional law:
Feasible precautions are those precautions which are practicable or practically possible
taking into account all circumstances ruling at the time, including humanitarian and
military considerations.231
This means that, among others, the means and intelligence at the disposal of the
decision-maker, the urgency of the situation, as well as the damage likely to result
from an erroneous decision made by the operating forces have to be taken into
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rules 15–21, p. 51 ff; as well as Colombian

Constitutional Court, Sentencia No. C-291/2007, 25.04.2007, pp. 63, 91 ff. considering the rule as
ius cogens.
229
230
231
Article 3 [4] Protocol II to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscrim-
inate Effects (1980), UNTS Registration No. I-22495, (in the following called CCW); Article 1 [5]
CCW Protocol III (1980); Article 3 [10] CCW Amended Protocol II (1996).
account.232 For example, if it is clear that an individual belongs to an armed group

but it remains uncertain whether he/she assumes a combat function, the operation
must be based on the intelligence available and a standard of reasonableness. An
extensive investigation into the specific functions of each and every person is not
required.233 The standard of doubt in a combat situation is incomparable to that of
one in a penal process. The circumstances in such a process differ extensively from
a situation of armed conflict. In an armed conflict, the situation has to be understood
immediately, and reactions must also be quick in order to prevent irreversible
damage. Depending on the information available and the respective circumstances,
the decision has to be made individually, for each concrete case.234
If intelligence can provide sufficient information to show that an individual is a
civilian, but it remains unclear whether he/she participates directly in hostilities, he/
she is presumed to enjoy the protection of a civilian (see Section C.II.7, “Presumption
in Situations of Doubt”). If the operating forces conclude that the targeted group or
individual presents a military objective, the operation is ruled by IHL. If, under IHL,
the targeted group or person is protected against direct attacks, this does not lead to the
conclusion that no measures can be taken against the group or individual. However,
the measures would be regulated by international human rights standards. Hence, the
respective precautionary measure is not only of relevance for the materialization of the
principle of distinction. It also stipulates that the operating forces classify their
operation as one regulated by IHL or human rights standards. Of course, this is not
the primary objective of the rule; however, it is implied.
To conclude, IHL governing non-international armed conflicts imposes a
mandatory verification of whether the operating forces’ operations take place within
the hostilities or outside of the hostilities. This obligation is of particular relevance to
public forces. This is not an easy task when the operation takes place in a gray area,
for it can be difficult to verify. However, this cannot excuse the operating forces from
doing everything feasible, i.e. taking all practical precautions and circumstances into
account, including humanitarian and military considerations. If a public force does
not fulfil this obligation, an infraction would be committed.
2. Precautionary Measures with regard to the Principle of Proportionality
Precautionary measures have to be taken into account in order to assure the

principle of proportionality. Customary IHL governing non-international armed
conflicts provides:
Each party to the conflict must take all feasible precautions in the choice of means and
methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss
of civilian life, injury to civilians and damage to civilian objects.
232
ICRC, Direct Participation in Hostilities – Interpretive Guidance, Recommendation VIII, pp.
17, 74 ff.
233
234
Each party to the conflict must do everything feasible to assess whether the attack may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated.
Each party to the conflict must do everything feasible to cancel or suspend an attack if it
becomes apparent that [. . .] the attack may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military advantage
anticipated.235
VI. The Prohibition and Restriction of Certain Means and

Methods
IHL provides prohibitions and restrictions of certain means and methods. The aim
of these rules is to find a compromise between military necessity and humanity, as
earlier discussed, with regard to the principle of military necessity, and the basic
rule of Article 35.1 AP I (see Section C.III.2, “Principle of Military Necessity”). In
addition to this general rule, there are further specific norms, mostly defined in
treaty IHL applicable to international armed conflicts. A certain number of these
norms are part of customary IHL governing non-international armed conflicts.236
They have little importance in regard to the question of whether lethal force is
allowed; rather, they are related to the way in which a person is killed.
1. Denial of Quarter
Ordering that no quarter will be given, threatening an adversary therewith, or

conducting hostilities on this basis is prohibited.237
2. Perfidy
Killing, injuring or capturing an adversary by resorting to perfidy is prohibited.238
235
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rules 17–19.
236
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 46 ff.
237
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rule 46. Article 4.1 AP II rules: “It is
prohibited to order that there shall be no survivors”.
238
3. Specific Weapons
The use of means and methods of warfare that cause superfluous injury or unnecessary
suffering is prohibited. Moreover, the use of weapons, which are indiscriminate by
nature, is prohibited.239
In addition to these general principles of the use of weapons, there is a number of
special treaties and provisions that prohibit or restrict certain weapons, such as
poison, biological weapons, chemical weapons, booby-traps,240 landmines,241 etc.

(Law Enforcement)
In this section, the legal requirements of law enforcement operations that take place
outside the hostilities are analyzed. As stated in Section B, “Applicable Branches of
International Law”, these operations are regulated by the international law of
human rights, namely by the ICCPR and ACHR.
I. The Right to Life in ICCPR and in ACHR
Life is protected in both treaties. Article 6.1 ICCPR rules:

Every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.
And similarly, in Article 4.1 ACHR:

Every person has the right to have his life respected. This right shall be protected by law
and, in general, from the moment of conception. No one shall be arbitrarily deprived of his
life.
In both treaties, the right to life is not absolute, since it is prohibited that life be
deprived “arbitrarily”. The argumentum a contrario leads to the conclusion that a
non-arbitrary deprivation is not forbidden, but allowed.242 It is interesting to note
that, in this regard, both treaties use the same wording. Moreover, both rule that the
protection from arbitrary deprivation of life cannot be derogated or suspended,
239
Henckaerts/Doswald-Beck, Customary IHL, Vol. I, Rules 70, 71.
240
Colombia is a state-party to the Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices (Protocol II), 10 October 1980, UNTS Registration No. I-22495.
241
Colombia is a state-party to the Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997,
UNTS Registration No. I-35597.
242
Nowak, UN-CCPR Commentary, Article 6, } 12; O’Donnell, DIDH, p. 101.
D. Killing under International Human Rights Law (Law Enforcement) 95
regardless of the concrete circumstances.243 The meaning of “arbitrarily” is not

defined in either treaty.
In the following, the meaning of “non-arbitrary” deprivation of life, and whether
this has the same meaning in both treaties, is analyzed. In order to have a better
understanding of the notion that one “shall not be deprived arbitrarily of his life,”
and due to the lack of definition of “arbitrarily” in both treaties, it is helpful to look
at the rules’ origins, in particular at the travaux pre´paratoires.244
II. Origin of the Term “Arbitrary”
1. Travaux Pre´paratoires of the ICCPR
During the drafting process of the final version of the article, it was discussed
whether the term “arbitrary” should be replaced by an enumeration of legitimate
cases of deprivation of life. However, this was rejected for several reasons. There
was a fear that an article drafted with an enumeration of exceptions would seem to
authorize killing, rather than to safeguard life.245 In addition, there was a concern
that an enumeration might be incomplete.246 Consequently, the general formulation
of the prohibition of arbitrariness was adapted.247
Moreover, it was discussed whether the term “arbitrary” refers not only to
“lawful”, but also to “unjust,” and this was widely agreed upon.248 It was argued
that if “lawful” was the only constitutive element, a simple provision under
domestic law would be required in order to prove that lethal force was not arbitrary.
This was held to be insufficient for the protection of life, in particular, if domestic
law authorizes a broad basis of killing. As life was considered to be the most
fundamental right, and a deprivation of that right causes an irreversible loss, any
erosion of the safeguard has to be avoided. Hence, “arbitrary” should constitute
both “lawful” and “just” elements.249
243
Article 4.2 ICCPR: “No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18
may be made under this provision.”; Article 27.2 ACHR: “The foregoing provision does not
authorize any suspension of the following articles: [. . .] Article 4 (Right to Life) [. . .]”.
244
The recourse to the travaux pre´paratoires seems to be legitimate according to Article 32 Vienna
Convention.
245
Commission on Human Rights, Document A/3764, } 115 [E/CN.4/SR.139 }9; E/CN.4/SR.309
p. 6; E/CN.4/SR.310 p. 15]. [Cf. Bossuyt, Guide].
246
Commission on Human Rights, Document A/2929 [E/CN.4/SR.98 pp. 2, 3, 8–10; E/CN.4/
SR.139 }} 7, 11; E/CN.4/SR.140 }} 2, 13, 34, 42; E/CN.4/SR.152 }} 4, 5; E/CN.4/SR.309 pp. 4, 5,
7; E/CN.4/SR.310 pp. 8, 9]. [Cf. Bossuyt, Guide].
247
Commission on Human Rights, Document A/2929, Chap. VI, } 3. [Cf. Bossuyt, Guide].
248
Commission on Human Rights, Document A/3764, } 114. [Cf. Bossuyt, Guide].
249
Commission on Human Rights, Document A/2929, Chap. VI, } 3 [Cf. Bossuyt, Guide];
Ramcharan, Drafting History of Article 6, p. 43.
2. Travaux Préparatoires of the ACHR
The Organization of American States adopted the ACHR on 21 November 1969,

shortly after the United Nations General Assembly approved the ICCPR (on 16
December 1966). Despite the existence of this universal instrument for the protection
of human rights, the Organization of American States held that the regional conven-
tion on human rights was necessary, due to the ICCRP’s limited opportunities of
individual access to international jurisdiction.250 With regard to the procedural
possibilities of individuals, the European Convention on Human Rights influenced
the ACHR.251 Conversely, with regard to the material provisions of human rights, the
ACHR was inspired, to a considerable degree, by the ICCPR.252 In particular,
regarding Article 4 ACHR (the right to life), the same wording as in Article 6
ICCPR was used purposefully, with the aim of strengthening the right to life.253
However, the draft that was elaborated by the Inter-American Commission on
Human Rights and submitted to the Conference I was changed slightly, in particular
with regard to a more explicit protection of unborn life.254 This issue was subject to
discussion at the Conference I.255 The term “arbitrary” also was discussed, however,
in the end, it was decided that the provision should remain identical to the ICCPR.256
It can be concluded that establishing the same meaning of “arbitrary” as
provided under the ICCPR was intentional.
3. Meaning of “Arbitrary”
The wording does not provide a clear definition of the term “arbitrary”. It suggests
that it contains elements of capriciousness and unreasonableness257 and could
be held as “based on random choice or personal whim or (of power or authority)
250
Dunshee, Comparative Study, } 35.
251
Robertson, Revision of Charter OAS, p. 357; Dunshee, Comparative Study, }} 37 ff.
252
Dunshee, Comparative Study; IACiHR, Report 19th Session, }} 29, 36.
253
Conferencia Especializada, The government of the Dominicain Republic made the following
observations and comments: “Párrafo 1: Creemos que en cuanto al ‘derecho a la vida’, se
fortalecerı́an los conceptos universales de los derechos humanos si el texto interamericano fuera
igual al que se adoptó en las Naciones Unidas, en el Artı́culo 6(1) del pacto”.
254
Dunshee, Comparative Study, } 52; IACiHR, Report 19th Session, Appendix I.
255
See Acta de la segunda sesión de la Comisión I in Conferencia Especializada, p. 159 ff, namely
the interventions of the delegate of Brazil, who, on the one hand, argued against protection from
the moment of conception, and that of the president, on the other hand, who stated that he was in
favour of such a protection.
256
Conferencia Especializada, p. 160: “El delegado de Estados Unidos (Sr. Richard D. Kearney)
expone que las observaciones de su paı́s sugieren que se acomode dicho texto con el Artı́culo 6,
párrafo 1, del Pacto de Derechos Civiles y Polı́ticos de las Naciones Unidas. [. . .] El Delegado de
Brasil (Sr. Carlos Alberto Dunshes de Abranches) expresa que la Conferencia no debe seguir de
una manera servil el texto del Pacto de las Naciones Unidas”.
257
Nowak, UN-CCPR Commentary, Article 6, } 13.
used without constraint; autocratic”.258 Hence, the term must be analyzed more
profoundly.
As both treaties aim to protect life in the same way, (disregarding the question of
unborn life that does not matter in this thesis), it is adequate to analyze the term
“arbitrary” as one in the following sections, instead of interpreting each treaty
separately. Moreover, as is analyzed hereafter, the interpretation of the term under
each treaty leads to the same requirements.
III. “Legitimate Purpose” and “Absolute Necessity”
The first criterion of the notion “not arbitrarily deprived of life” consists of a
legitimate purpose and absolute necessity. This can be found in different sources.
1. View of the United Nations’ Human Rights Bodies
The United Nations Human Rights Committee considers life to be a supreme right
that should not be interpreted narrowly. It states that:
States parties should take measures not only to prevent and punish deprivation of life by
criminal acts, but also to prevent arbitrary killing by their own security forces. The
deprivation of life by the authorities of the State is a matter of the utmost gravity.259
Additionally, in the case of Guerrero v. Colombia, where Colombian policemen

killed several persons, it was held that it was important to question if the use of
deadly force “was necessary in their own defence or that of others, or that it was
necessary to effect the arrest or prevent the escape of the persons concerned.”260
Similarly, in the case Baumgartner v. Germany, the Human Rights Committee
considered that lethal force might only be used as a “last resort to meet a propor-
tionate threat”.261
Over the years of his reporting, the Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions has provided a continually sophisticated categorization of
violations.262 In recent reports, he has emphasised that lethal force has to be pursuant
to a legitimate objective, and must be strictly unavoidable for its achievement.
In particular, he holds:
Human rights law unconditionally prohibits the needless killing of suspected criminals, but
it fully recognizes that lethal force is sometimes strictly necessary to save the lives of
258
Compact Oxford English Dictionary.
259
UNHRC, CCPR General Comment No. 6, } 3.
260
UNHRC, Guerrero v. Colombia, Communication No. 45/1979.
261
UNHRC, Baumgartner v. Germany, Communication No. 960/2000 } 9.4 [Emphasis added by
author].
262
UN Special Rapporteur (Execution), Doc. 09.01.2002, p. 7.
innocent people from lawless violence. [. . .] For lethal force to be considered to be lawful it
must be used in a situation in which it is necessary for self-defence or the defence of
another’s life. [...] In addition to being pursuant to a legitimate objective, the force
employed by law enforcement officers must be strictly unavoidable for its achievement.
Non-lethal tactics for capture or prevention must always be attempted if feasible. In most
circumstances, law enforcement officers must give suspects the opportunity to surrender,
and employ a graduated resort to force. However, the use of lethal force may prove strictly
unavoidable when such tactics would unduly risk death or serious harm to law enforcement
officers or other persons.263
Hence, both bodies hold that the use of lethal force must only be realized when a
legitimate purpose is given, such as self-defence, prevention of a proportionate
threat, or preceding a lawful arrest. Moreover, killing must be a last resort, i.e.
absolute necessary.
2. View of the Inter-American Court on Human Rights and Inter-American

Commission on Human Rights
Both the Inter-American Court and the Commission on Human Rights consider that
lethal force is legitimate when it is strictly unavoidable to protect persons from
imminent threat of death or serious injury. Thus, their view relates lethal force to
legitimate purpose and strict necessity.
The Inter-American Court on Human Rights has not provided profound jurisdiction
on the term “arbitrary deprivation of life.”264 Nonetheless, the court has ruled in a
number of cases:
Without question, the State has the right and duty to guarantee its security. It is also
indisputable that all societies suffer some deficiencies in their legal orders. However,
regardless of the seriousness of certain actions and the culpability of the perpetrators of
certain crimes, the power of the State is not unlimited, nor may the State resort to any means
to attain its ends. The State is subject to law and morality. Disrespect for human dignity
cannot serve as the basis for any State action.265
In its report on terrorism, the Inter-American Commission on Human Rights holds

that “the state may resort to lethal force only against individuals that threaten the
security of all,” adding:
Finally, as specified by the Inter-American Court and the Commission, the amount of force
used must be justified by the circumstances, for the purpose of, for example, self-defense or
neutralizing or disarming the individuals involved in a violent confrontation. [...] It should
263
UN Special Rapporteur (Execution), Doc. 08.03.2006, } 48 [Emphasis added by author].
264
O’Donnell, DIDH, p. 101.
265
IACtHR, Velásquez Rodrı´guez Case, Serie C No. 4, Judgment 29.07.1988, } 154; Godı´nez Cruz
Case, Serie C No. 5, Judgment 20.01.1989, } 162; Neira Alegria Case, Serie C No. 20, Judgment
19.01.1995, } 75.
be emphasized that, contrary to international humanitarian law governing situations of

armed conflicts, relevant applicable norms of international human rights law require that
state agents not use force to target individuals involved in a violent confrontation except in
the above-mentioned circumstances.266
3. European Convention on Human Rights as Interpretative Guidance
Some scholars have taken the view that the cases of permissible deprivation of life
that are listed in Article 2.2 of the European Convention on Human Rights (ECHR)
cannot be considered to be arbitrary under the ICCPR and ACHR.267 Article 2.2
ECHR rules:
Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.
The UN human rights bodies, the Inter-American Court, and the Commission on
Human Rights require a legitimate purpose in order to kill. As previously analyzed,
they mainly name cases of self-defence or the defence of others, but also cases of
preventing escape from lawful arrest or detention. The ECHR provides a further case
in addition to these: preventive measures against riots or insurrection. Incidentally,
this case’s field of application is very narrow,268 in particular, due to the fact that a
number of cases already fall under the first category of defence of any person.269
Furthermore, the non-derogable character of the right to life “[i]n times of public
emergency which threatens the life of the nation and the existence of which is
officially proclaimed” in Article 4 ICCPR, or “[i]n time of war, public danger, or
other emergency that threatens the independence or security of a State Party” in
Article 27 ACHR, have to be taken into consideration. This leads to a further
restriction on the field of application.
As required by the UN human rights bodies as well as the Inter-American Court
and Commission on Human Rights, the ECHR demands an absolute necessity.
266
IACiHR, Report Terrorism and Human Rights, }} 90 ff.
267
Nowak, UN-CCPR Commentary, Article 6, } 14; Kretzmer, Targeted Killing, p. 177.
268
Meyer-Ladewig, EMRK, Artikel 2, } 24.
269
ECtHR, Isayeva Case, Application No. 57947/00 and 57950/00, Judgments 24.02.05. In this
case, air strikes were carried out against Chechen insurgent and several civilians were killed. The
Court did not consider this to be a justification under the third category, and instead, it assessed
whether self-defence was given.
4. Code of Conduct for Law Enforcement Officials and the Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials
The Code of Conduct for Law Enforcement Officials270 and the Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials271 are part of the
United Nation’s standards, norms, and guidelines for crime prevention and criminal
justice. They are not conventions; however they have been adopted by the United
Nations General Assembly. Their adoption reflects a consensus of the international
state community. Insofar as they provide standards, they must be considered.272
Both instruments pretend to make the non-arbitrary use of firearms and the
non-arbitrary deprivation of life concrete. The UN-Commentary to the Code of
Conduct, Article 2 refers to the ICCPR and states that “[a]mong the relevant
international instruments are [. . .] the International Covenant on Civil and Political
Rights”.273 The Preamble of the Basic Principles refers to the same treaty:
“Whereas law enforcement officials have a vital role in the protection of the right
to life [. . .] as guaranteed in [. . .] the International Covenant on Civil and Political
Rights”. Consequently, they can be adducted for the interpretation of the ICCPR.274
In a series of cases, the Inter-American Commission on Human Rights interpreted
the right to life under Article 4 ACHR in light of these instruments.275 Moreover, it
is interesting to note that these instruments do not provide new standards, but that
270
Adopted by UNGA, Resolution 34/169 of 17.12.1979.
271
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, Havana, Cuba, 27.08 to 07.09.1990, and welcomed by the UNGA, Resolution
45/166 of 18.12.1990.
272
Non-binding instruments would provide important elements to the interpretation of a conven-
tion. Article 31.2 Vienna Convention rules: “The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its preamble and annexes: [. . .](b) any
instrument which was made by one or more parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument related to the treaty.” Affirmative: Thürer, Soft
Law, p. 446 ff.
273
UN Code of Conduct, Article 2, Commentary.
274
UN Special Rapporteur (Execution), Doc. 08.03.2006, } 48, FN 40, 41; O’Donnell, DIDH, p.
103 ff; Melzer, Targeted Killing, p. 85 ff; Ruys, Licence to Kill, p. 23; Watkin, Use of Force, p. 18.
Incidentally, the ECtHR also refers to these instruments in its interpretation of the ECHR, for
example: McCann Case, Application No. 18984/91, Judgment 27.09.1995, }} 139 f; Nachova
Case, Applications Nos. 43577/98 and 43579/98, Judgment 06.07.2005.
275
IACiHR, Guatemala Report 2001, Chap. 5 “Right to life”, } 50: “State agents may be
empowered by the State to utilize force when strictly necessary and to the extent necessary for
the effective compliance of their legitimate duties. This is the clear standard set in the UN Code of
Conduct for Law Enforcement Officials, which serves as an authoritative and internationally
recognized guide for the use of such force.”; Report Terrorism and Human Rights, } 87 (FN
250); Report on the Situation of Human Rights Defenders, } 66; Corumbiara Case 11.556, Report
No. 32/40, }} 171 ff; Marco de Assis Ruben Case 11.417 i.a., Report No. 55/01, } 138; Da Silva
Case 11.598, Report No. 9/00, } 34.
the standards that are set are mostly based on the interpretation of the right to life in
Article 6 ICCPR, prior to 1990.276
The Code of Conduct for Law Enforcement Officials provides in Article 3:
Law enforcement officials may use force only when strictly necessary and to the extent
required for the performance of their duty.
The UN Commentary states hereunto:

This provision emphasizes that the use of force by law enforcement officials should be
exceptional; while it implies that law enforcement officials may be authorized to use force
as is reasonably necessary under the circumstances for the prevention of crime or in
effecting or assisting in the lawful arrest of offenders or suspected offenders, no force
going beyond that may be used.
[. . .] The use of firearms is considered an extreme measure. Every effort should be made to
exclude the use of firearms, especially against children. In general, firearms should not be
used except when a suspected offender offers armed resistance or otherwise jeopardizes the
lives of others and less extreme measures are not sufficient to restrain or apprehend the
suspected offender.277
The commentary names self-defence and the prevention of escape from lawful
arrest as legitimate purposes. Thus, it recognizes the view that these cases can lead
to the non-arbitrary deprivation of life. The conclusion is drawn in Article 9 of the
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
providing:
Law enforcement officials shall not use firearms against persons except in self-defence or
defence of others against the imminent threat of death or serious injury, to prevent the
perpetration of a particularly serious crime involving grave threat to life, to arrest a person
presenting such a danger and resisting their authority, or to prevent his or her escape, and
only when less extreme means are insufficient to achieve these objectives. In any event,
intentional lethal use of firearms may only be made when strictly unavoidable in order to
protect life.
In this provision, in addition to defence and the prevention of escape from lawful
arrest, a further case is mentioned: the prevention of particularly serious crimes.
However, as said previously regarding the prevention of riots or insurrection in
Article 2.2 ECHR, the field of application should be narrow for this kind of case.
(See Section D.III.3, “European Convention on Human Rights as Interpretative
Guidance”.)
In the above-mentioned provisions of both instruments, absolute necessity
is required. This confirms the view of the UN human rights bodies, the Inter-
American Court, the Commission on Human Rights, as well as the ECHR.
276
O’Donnell, DIDH, p. 107.
277
5. Summary of “Legitimate Purpose” and “Absolute Necessity”
Analyzing the previous views, it can be concluded that they all agree on the idea
that lethal force can be applied only in exceptional situations, when the criteria of a
legitimate purpose and absolute necessity are fulfilled. If the objective of the use of
lethal force were not pursuant to a legitimate purpose, the killing would be qualified
as arbitrary. The same would be so if the killing were not absolutely necessary.
Finally, killing always has to be proportionate. In the following, these different
elements are analyzed in further detail.
a) Legitimate Purpose
As analyzed previously, a legitimate purpose is required to kill. The opinion that

such a legitimate purpose is given for self-defence, or the defence of others against
imminent threat of death or serious injuries, is concurred upon.278 Thereby, it is
necessary to assess the threat. Only one that causes death or serious injuries meets
the requirement. Moreover, the threat must be unlawful, or, in other words, the
defence must be aimed at protecting oneself or someone else from unlawful
violence.279
It is also recognized that a legitimate purpose is given for the prevention of
escape from arrest.280 This requires, as provided in the European Convention on
Human Rights, that the arrest be lawful. This is the case when an arrest warrant has
been issued,281 or when a crime has been committed in flagrante.282
278
IACiHR, Report on Terrorism and Human Rights, } 90: “the amount of force used must be
justified by the circumstances, for the purpose of, for example, self-defense”; Code of Conduct for
Law Enforcement Officials, Article 3, Commentary C: “firearms should not be used except when a
suspected offender [. . .] jeopardizes the lives of others and less”; Basic Principles on the Use of
Firearms by Law Enforcement Officials, Provision 9: “except in self-defence or defence of others
against the imminent threat of death or serious injury”. Affirmative UN Special Rapporteur
(Execution), Doc. 08.03.2006, } 48: “For lethal force to be considered to be lawful it must be
used in a situation in which it is necessary for self-defence or the defence of another’s life.” Boyle,
Concept of arbitrary deprivation, pp. 221, 241 ff. Cf. ECHR: “in defence of any person from
unlawful violence”.
279
See ECtHR, Isayeva Case, Application No. 57947.00, Judgment 24.02.05, } 181.
280
UN Code of Conduct, Article 3, Commentary A and C: “be authorized to use force for [. . .] the
lawful arrest”. “In general, firearms should not be used except when a suspected offender offers
armed resistance”; Basic Principles on the Use of Firearms by Law Enforcement Officials,
Provision 9: “to arrest a person [. . .] or to prevent his or her escape”. Cf. ECHR: “in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained”.
281
See Article 28 of the Colombian Constitution: “Every person is free. No one may be importuned
in his/her person or family, sent to jail or arrested, nor may his/her home be searched except
pursuant to a written order from a competent legal authority, subject to legal process and for
reasons previously established by law”.
282
See Article 32 of the Colombian Constitution: “The criminal who is caught in flagrante delicto
may be apprehended and taken before a judge by any individual”.
It seems possible that further cases, namely the prevention of particularly serious
crimes involving great threats to life, or threats of violence against a state or its
population, can also represent a legitimate purpose under the ICCPR and ACHR.
This can be argued favourably, since a defined rule or enumeration of legitimate
cases was not decided upon during the drafting processes of the conventions.
Accordingly, one author considers that further cases not mentioned in the ECHR
can also be considered not arbitrary stating that non-arbitrary deprivation of life
would go far beyond those listed in the ECHR. He does not provide any argument as
to why this would be the case.283 As will be shown hereafter in Section III.6, “Is
Terrorism a Legitimate Purpose?” it is possible that further objectives can be
pursuant to a legitimate purpose.284 However, each legitimate purpose has to
meet a proportionality test. A mere legitimate purpose does therefore not suffice
to consider lethal force as non-arbitrary. If the author suggested so, the opinion
would not fully take into account that life is a supreme right that it has to be
interpreted broadly.285 This leads to the need to narrowly interpret the term “non-
arbitrary.”
b) Absolute Necessity
The above-mentioned purposes do not legitimize a killing on their own. Additionally,

it is required that lethal force is absolutely (or strictly) necessary.286 In fact, it can be
concluded that the requirement of absolute necessity is more restrictive than the
legitimate purposes. Absolute necessity means that lethal force may only be used if
other means remain ineffective, or have no promise of achieving the operation’s goal.
Thus, a lesser degree of force would not be effective. In this respect, “absolute” means
that a stricter and more compelling test of necessity must be employed than normal.287
Killing is consequently unlawful if the desired purpose could also be achieved by
means other than the use of lethal force.288
The Basic Principles on the Use of Firearms by Law Enforcement Officials
endeavours to provide further guidance on the interpretation of “absolute
283
Guradze, Menschenrechtskonvention der VN, p. 255.
284
Contrary to Nowak, UN-CCPR Commentary, Article 6, } 14.
285
UNHRC, CCPR General Comment No. 6, } 1.
286
Cf. References to ECHR: “the use of force which is no more than absolutely necessary”,
IACiHR in its Report on Terrorism and Human Rights, } 88: “the use of lethal force must be
necessary as having been justified by a state’s right to protect the security of all”, Code of Conduct
for Law Enforcement Officials, Article 9: “use force only when strictly necessary” and Basic
Principles on the Use of Firearms by Law Enforcement Officials: “only when less extreme means
are insufficient to achieve these objectives”. [Emphasis added by the author.] Affirmative: Nowak,
UN-CCPR Commentary, Article 6, } 14.
287
ECtHR, Andronicou, Constantinou Case, Application No. 25052/94, Judgment 09.10.1997, }
171.
288
Melzer, Targeted Killing, pp. 227 ff, 101. Affirmative Ruys, Licence to Kill, p. 23.
necessity”. Accordingly, lethal force can be used “only when less extreme means
are insufficient to achieve these objectives. In any event, intentional lethal use of
firearms may only be made when strictly unavoidable in order to protect life.”289
This is made concrete by different aspects.
Law enforcement officials shall carry out their operation using less extreme
means, namely trying to arrest the person, and not to kill him or her.290
If the person resists or tries to escape, before relying on lethal force, “law
enforcement officials shall identify themselves as such and give a clear warning of
their intent to use firearms, with sufficient time for the warning to be observed.”291
The aim of the warning is that the person is given the chance to surrender.292 There
is no need for such identification and warning if “to do so would unduly place the
law enforcement officials at risk or would create a risk of death or serious harm to
other persons, or would be clearly inappropriate or pointless in the circumstances of
the incident.”293 In this case, lethal force may be used immediately.294
6. Is Terrorism a Legitimate Purpose?
One may ask if terrorism could legitimize the use of force. In particular, with regard
to deadly force, terrorism could be pursuant to a legitimate purpose that leads to the
legality of killing a terrorist. In the aftermath of 9/11, there has been a certain
tendency to restrict human rights. However, it was previously explained that the
fight against terrorism should be conducted with full respect of the rules of law,
including human rights. This is ruled in the Inter-American Convention against
Terrorism.295 Moreover, the Inter-American Commission on Human Rights
reminded states that they are obliged by human rights.296 Similarly, various United
Nations human rights bodies have clearly called for the full respect of human rights
by states with regard to their counter-terrorism measures.297
289
Basic Principles on the Use of Firearms by Law Enforcement Officials, Article 9.
290
UN Special Rapporteur (Execution), Doc. 08.03.2006, } 48: “Non-lethal tactics for capture or
prevention must always be attempted if feasible”.
291
Basic Principles on the Use of Firearms by Law Enforcement Officials, Article 10 [emphasis
added by author]. Affirmative: UN Special Rapporteur (Execution), Doc. 08.03.2006, } 48.
292
UNHRC, Guerrero v. Colombia, Communication 45/1979, } 13.1.
293
Basic Principles on the Use of Firearms by Law Enforcement Officials, Article 10.
294
UN Special Rapporteur (Execution), Doc. 08.03.2006, } 49: “When a criminal is already in the
process or visibly on the verge of using a weapon, there can be little doubt regarding the
inevitability of violence if immediate recourse to lethal force is not taken”.
295
See Article 15 Inter-American Convention against Terrorism.
296
IACiHR, Report on Terrorism and Human Rights, }} 37 ff, 79 ff.
297
For example: UNSC, Declaration annexed to Resolution 1456 (2003), } 6; and Resolution 1624
(2005) } 4; UNHRC, Concluding observations: Israel (2003); UN HR-Commission, Resolution
2005/80. See also Alston, UN Human Rights Council and its Special Procedures in relation to
Armed Conflicts, p. 183 ff. Affirmative Hoffman, Human Rights and Terrorism, p. 932 ff.
Various human rights bodies agree on this. As stated before, the right to life is a
supreme right, and the deprivation of one’s life is lawful only under restrictive
requirements. The current ruling of which deprivations are legitimate gives sufficient
basis for states in their counter-terrorism measures, as has been discussed before.
Further derogation from the fundamental right of freedom does not seem to be
necessary. In addition to this, Schorlemer holds:
Promoting human rights, democracy and the rule of law is in the long term the surest
foundation for stability and peace. Thus, there is good reason to believe that greater respect
for human rights, along with democracy and social justice, will in the long term prove to be
the only true remedy for terrorism – even though there are undoubtedly some “hard core
terrorists” whose minds are beyond our reach.298
Human rights do not weaken the fight against terrorism. A society cannot consider
human rights to be a luxury that can be revoked in order to fight terrorism. On the
contrary, if counter-terrorism measures are not based on human rights, the success
of the fight against terrorism can be jeopardized on the whole. This statement
should not to be misunderstood to mean that the fight against terrorism would be
not pursuant to a legitimate purpose. However, it does not justify a killing without
meeting all requirements under human rights standards, in particular absolute
necessity and proportionality. The latter is assessed hereafter.
IV. Arbitrariness and Proportionality
1. Origin of the Rule
Proportionality is a principle of general public international law that was first

recognized in the customary law of reprisals and self-defence. It provides limitations
on the use of force.299 Nowadays, the principle provides a sophisticated ruling in
different branches, such as human rights law.300 It is not ruled by ICCPR or ACHR.
However, it is explicitly mentioned in a number of decisions and documents, and
recognized as a further requirement for the use of force of any kind. E.g. the
Commentary to the Code of Conduct for Law Enforcement Officials states:
National law ordinarily restricts the use of force by law enforcement officials in accordance
with a principle of proportionality. It is to be understood that such national principles of
proportionality are to be respected in the interpretation of this provision. In no case should
this provision be interpreted to authorize the use of force which is disproportionate to the
legitimate objective to be achieved.301
298
Schorlemer, Human Rights: War against Terrorism, p. 13.
299
Higgins, Problems and Process, p. 230 ff. See also UNHRC, CCPR General Comment No. 29,
} 4.
300
Delbrück, Encyclopedia of Public International Law, Vol. III, p. 1141.
301
Similarly, regarding the use of force with firearms, the Basic Principles on the Use
of Force and Firearms by Law Enforcement Officials provides:
Whenever the lawful use of force and firearms is unavoidable, law enforcement officials
shall [e]xercise restraint in such use and act in proportion to the seriousness of the offence
and the legitimate objective to be achieved [. . .].302
The Inter-American Commission on Human Rights states in its Report on Terrorism:

Excessive force or disproportionate force by law enforcement officials that result in the loss
of life may therefore amount to arbitrary deprivations of life.303
2. Content of the Rule
Proportionality can be defined as the due relationship between an individual’s

enjoyment of human rights and its limits. This means that the limits have to be
proportional to the importance of the right.304 Generally, the limit is imposed in
order to achieve another objective. Thus, a proportionality test implies balancing
the right and its limits on the one hand and the objective on the other hand. If this
balancing leads to the conclusion that the aimed objective is in disproportion to the
right, the act that aims to limit the right is unlawful. By using this rule with the
right to life, proportionality means that lethal force must be used in order to achieve
an objective. Moreover, this objective must be in proportion to the loss of life.
If balancing the objective and the loss of life results in the objective being
disproportionate to the life, the killing would be unlawful.
Proportionality is sometimes referred to as a matter of “legitimate purpose” and
“absolute or strict necessity.”305 Necessity implies an element of proportionality,306
since it implies that killing should be carried out in order to achieve a legitimate
purpose, as discussed in the previous section. However, the proportionality assessment
relates to a concrete case and its specific circumstances. For each case, the purpose for
which a person will be killed, and the loss of the person’s life, must be weighed. In a
concrete case, the legitimate purpose has to be in proportion to the killing.
302
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Provision 5
lit. 5.
303
IACiHR, Report Terrorism and Human Rights, } 92.
304
Delbrück, Encyclopedia of public international law, Vol. III, p. 1143.
305
O’Donnell, DIDH, p. 103 ff. explains the criteria of “legitimate purpose” and “absolute
necessity” in the chapter “La proporcionalidad de la fuerza utilizada para la defensa del orden
público”. Cf. also UNHCR, Guerrero v. Colombia, Communication 45/1979, } 13.3 where
proportionality is related to reasons of “legitimate purpose” and “absolute necessity”; Boyle,
Concept of arbitrary deprivation, p. 239 ff.
306
UNHRC, Faurisson v. France Case, Communication 550/1993, Individual opinion by Elizabeth
Evatt and David Kretzmer, co-signed by Eckart Klein, } 8.
The proportionality assessment is of particular relevance to cases where lethal

force is used for the purpose of preventing an escape. In this case, a legitimate
purpose is given — preventing an escape from a lawful arrest. However, killing
would not be in proportion to the loss of life if life were more valuable than the
objective that is sought by killing. In this case, the law enforcement officers must
not kill, despite the risk of escape.307 Life has more weight when it is known that a
person who will be arrested does not pose any threat to life or limb, and is not
suspected of having committed a violent offence,308 but only suspected of having
committed a simple theft,309 or because the person violated a norm and this norm
flagrantly infringes human rights.310
V. Arbitrariness and Legal Basis
Arbitrariness requires that the officials operating and using lethal force do it legally,
under domestic law.311
1. Origin of the Legal Basis
In Section D.II.1, “Travaux Pre´paratoires of the ICCPR,” it was explained that

during the drafting process of the ICCPR, the term “arbitrary” was conceptualized
to have two elements. It does not only imply “lawful,” but also “just.” The
arguments that conclude that “just” must also be included are convincing.312
Considering arbitrariness as having two criteria has important consequences for
the legal framework that national legislation regarding lethal forces is based on.
A killing must not only be realized on a basis of domestic law in order to fulfil the
307
Boyle, Concept of arbitrary deprivation, p. 240.
308
ECtHR, Nachova Case, Applications Nos. 43577/98 and 43579/98, Judgment 06.07.2005, }}
95, 103, 107.
309
IACiHR, Da Silva Case, Brasil 11.598, } 34.
310
ECtHR, Streletz, Kessler and Krenz Case, Applications Nos. 34044/96, 35532/97 and 44801/
98, Judgment 22.03.2001, }} 15, 87, 96 ff. The norm concerned the GDR’s border-policing policy
and service instructions (Dienstvorschriften) as explained by the Minister of Defence to the border
guards; they were “fully responsible for preservation of the inviolability of the State border in their
sector and that ‘border violators’ [Grenzverletzer] should in all cases be arrested as adversaries
[Gegner] or, if necessary, annihilated [vernichtet].”
311
UNHRC, Guerrero v. Colombia, Communication 45/1979, } 13.1: “The requirements that the
right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the
law must strictly control and limit the circumstances in which a person may be deprived of his life
by the authorities of a State.” O’Donnell, DIDH, p. 101 affirms that the UNHRC’s conclusions are
also valid for the ACHR.
312
Nowak, UN-CCPR Commentary, Article 6, } 13.
“lawful” element,313 but the domestic law must also fulfil the element of “just”.
This occurs when the aforementioned requirements, such as legitimate purpose,
absolute necessity, and proportionality, are met. If domestic law does not meet these
criteria, Article 6 ICCPR and Article 4 ACHR could be violated.314 The Special
Rapporteur on extrajudicial, summary or arbitrary executions holds accordingly:
The State’s legal framework must thus “strictly control and limit the circumstances” in
which law enforcement officers may resort to lethal force. In addition to being pursuant to a
legitimate objective, the force employed by law enforcement officers must be strictly
unavoidable for its achievement. [. . .] States facing terrorist or other threats alleged to
require exceptional measures should instead clarify the implications of human rights law
for law enforcement officers through training and written guidance.315
Consequently, the legal basis must comply with the requirements of Article 6.1
ICCPR and Article 4.1 ACHR.
2. Legal Basis in Colombia
The National Police of Colombia must operate on the basis of domestic law, in
particular, when answering the question of when lethal force is legitimate. More-
over, the standards defined in domestic law have to meet the requirements of
international law.
The National Police conduct their operations, inter alia, on the basis of the
Military Penal Code. The Military Penal Code prohibits killing, however it provides
causes of justification in Article 34.316 In particular, a justification of the use of
313
Boyle, Concept of arbitrary deprivation, p. 239.
314
The rule that the domestic legal basis must meet this requirement is directly derived from the
obligation to protect life. UNHRC stated in the Case Guerrero v. Colombia, Communication 45/
1979, } 13.3 that the law of the state parties has to protect life adequately. In this case, police
officers killed seven suspected hostage takers without attempting an arrest, or giving them the
chance to surrender. The police officers operated on basis of a Special Decree, easing the
justification of killing under the Colombian Military Penal Code.
315
UNHRC, CCPR General Comment No. 6, } 3: ”The deprivation of life by the authorities of the
State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the
circumstances in which a person may be deprived of his life by such authorities”. Affirmative UN
Special Rapporteur (Execution), Doc. 08.03.2006, } 48; Joseph, Schultz and Castan, ICCPR, }
8.04; as well as O’Donnell, DIDH, p. 103 ff regarding both instruments, ICCPR and ACHR.
316
Artı́culo 34. Causales de justificación. El hecho se justifica: 1. Cuando se obre en estricto
cumplimiento de un deber legal. 2. Cuando se obre en cumplimiento de orden legı́tima de
autoridad competente emitida con las formalidades legales. 3. Cuando se obre en legı́timo ejercicio
de un derecho, de una actividad lı́cita o de un cargo público. 4. Cuando se obre por la necesidad de
defender un derecho propio o ajeno contra injusta agresión actual o inminente, siempre que la
defensa sea proporcionada a la agresión. Se presume la legı́tima defensa en quien rechaza al
extraño que, indebidamente, intente penetrar o haya penetrado a su habitación o dependencias
inmediatas, cualquiera sea el daño que se le ocasione. 5. Cuando se actúa por la necesidad de
defender un derecho propio o ajeno de un peligro actual o inminente, inevitable de otra manera,
que el agente no haya causado intencionalmente o por imprudencia y que no tenga el deber jurı́dico
lethal force is given when it occurs while fulfilling a strict legal duty, or in cases of
self-defence or the defence of others, when the defence is proportionate to the
attack. In both cases, the proper limits of cause for justification may not be
exceeded. In Article 218 of the Colombian Constitution, the primary purpose of
the National Police is to protect public rights and freedoms and to ensure that the
inhabitants of Colombia may live together in peace.
It can be assumed that the causes of justification meet the requirements of the
international law of human rights.
VI. Temporal Scope
In the moment that a killing is about to be realized, the above-mentioned requirements

must still be present. In particular, the legitimate purpose and absolute necessity, as
well as proportionality, have to be met at the moment when the means (lethal force) are
carried out. If, at an earlier stage, these requirements were met, but they changed and
are no longer the case at the moment of killing, the deprivation of life would be
unlawful.
VII. Further Aspects?
The Inter-American Commission on Human Rights states in its Report on

Terrorism:
The state may resort to force only against individuals that threaten the security of all, and
therefore the state may not use force against civilians who do not present such a threat. The
state must distinguish between the civilians and those individuals who constitute the threat.
Indiscriminate uses of force may as such constitute violations of Article 4 of the Convention
and Article I of the Declaration.
Similarly, in their law enforcement initiatives, states must not use force against individuals
who no longer present a threat as described above, such as individuals who have been
apprehended by authorities, have surrendered, or who are wounded and abstain from hostile
acts. The use of lethal force in such a manner would constitute extra-judicial killings
[. . .].317
It seems that the Inter-American Commission copied elements of IHL in its report,
namely the principle of distinction and the prohibition of attacking persons
rendered hors de combat. The court has been criticized, namely by Kretzmer, for
having created confusion. He argues that the distinction between civilians and
combatants is a matter of IHL, while human rights standards require that, in order
de afrontar. El que exceda los lı́mites propios de cualquiera de las causas de justificación
precedentes incurrirá en una pena no menor de la sexta parte del mı́nimo, ni mayor de la mitad
del máximo de la señalada para el hecho punible.
317
IACiHR, Report Terrorism and Human Rights, } 91.
to use lethal force, an individual must be threatened and have no other means
of defence.318 It is hard to comprehend why the statement would have created
confusion. In the first paragraph of the above-mentioned statement, the Commission
emphasizes that lethal force is prohibited, and there by repeats conclusions already
made in previous sections of the same report. In the second paragraph, it holds that
the threat presented by the person must still be present at the time of using force
against him or her. The wording is awkward when it refers to the question of
surrender and having been wounded. This, indeed, relates to IHL. However, it does
not create confusion, since no new elements are provided. Instead, it would have
been interesting if the Commission had clarified, in greater detail, the degree of
threat that an individual must present in order to allow enforcement officers to kill
him/her. For example, how much evidence must be provided in order to suppose
that he/she will cause a threat to life or limb? The Commission did not provide
detailed guidance on this issue.319
VIII. Precaution, Control and Organisation of the Operation
Precaution means that the operation has to be planned, organized, and controlled
with a general set-up that allows minimizing, to the greatest extent possible, recourse
to lethal force. The criterion was developed by the European Court on Killing
Under International Human Rights Law (Law Enforcement) in its judgment of
27 September 1995, McCann vs. United Kingdom.320 It is not explicitly mentioned
as a requirement of the Inter-American Court on Human Rights’ jurisdiction or in
the documents of the Inter-American Commission on Human Rights or United
Nations Human Rights Committee. At least in a rudimentary manner, documents
relating to the ICCPR and ACHR recognize the importance of a well-planned and
conducted operation in order to protect life. For example, it is recommended that the
development and deployment of non-lethal weapons be evaluated carefully in order to
minimize the risk of loss of life and the attempt to use non-lethal tactics as much as
feasible.321
318
Kretzmer, Targeted Killing, p. 181 ff.
319
It seems that this is, in the end, the main complaint in Kretzmer, Targeted Killing, p. 182,
asking: “The question that interests us – targeting of suspected terrorists who are not within the
state’s jurisdiction – remains obscure”.
320
Cf. } 194: “the Court must carefully scrutinise [. . .] whether the anti-terrorist operation was
planned and controlled by the authorities so as to minimise, to the greatest extent possible,
recourse to lethal force.”
321
Basic Principles on the Use of Force and Firearms, Provisions 3, 5, 10. See also UNHRC,
Guerrero v. Colombia, Communication 45/1979, } 13.1. Special Rapporteur (Execution), Doc.
08.03.2006, } 48.
Melzer considers precaution, control and organization of the operation to be a

general requirement, not only by the ECHR, but also the ICCPR and ACHR.322
This view is convincing. Deprivation of life is only legitimate as an exception,
when everything has been done to avoid lethal force. Namely, everything feasible
has to be done to prevent the escalation of violence. Planning is crucial to any
operation; at this stage, important decisions can be made and measures can be taken
in order to prevent the use of unnecessary lethal force.
Precaution, control and organization of the operation relate to different aspects.
1. Prevention of the Escalation of Violence
a) Arrest at an Appropriate Moment
In the first place, a capture should occur at an appropriate stage, in order to prevent
an escalation of violence later on. Law enforcement officials have to arrest the
person at the moment that it is possible, in order to prevent a situation later-on
where it is no longer possible to arrest the person, and when lethal force would be
absolutely necessary in order to achieve a legitimate purpose.323 For example, if a
person is suspected of committing a serious crime, such as planting a bomb. It can
be impossible to arrest the person when he/she is about to explode the bomb, since
at the moment of the arrest he/she still can realize the explosion (either by remote
control or by blowing up him/herself, in the case of a suicide attack). Accordingly,
lethal force seems to be absolutely necessary. However, it would be unlawful if it
were possible to arrest him/her during the preparation stage, or when he/she was
still far from the target.
b) Sufficient Set-Up
Furthermore, the operation has to be conducted by a sufficient number of law

enforcement officials, so that there are better chances of arresting the person or
assuring his/her surrender.324 When law enforcement officials operate against a
group of individuals with a very limited number of agents, it would be easier for
those individuals to escape (and use their firearms to achieve it). Consequently, law
322
Melzer, Targeted Killing, p. 235 ff provides important references on pp. 117, 154, 167, 199.
Affirmative: UN Special Rapporteur (Execution), Doc. 08.03.2006, }} 50 ff.
323
ECtHR, McCann Case, Application No. 18984/91, Judgment 27.09.1995, states that the law
enforcement officials failed by not arresting the person at an earlier stage when arrest was possible.
Instead, lethal force was used at a moment when apparently no arrest was possible, and lethal force
was, apparently, necessary. Cf. } 202 ff.
324
UN Special Rapporteur (Execution), Doc. 08.03.2006, } 48: “law enforcement officers must
give suspects the opportunity to surrender, and employ a graduated resort to force”.
enforcement officials might be forced to use their firearms in order to hinder the
other groups’ attempted escape. Conversely, when the officials operate with a
considerable number of agents, the adverse group might not believe that they
have a chance to escape, and therefore would not attempt to escape and not use
their arms.
2. Evaluation of Available Intelligence Information
Moreover, all of the available intelligence information is supposed to be taken into

account in order to operate using true facts. Therefore, all available measures have
to be taken into account in order to prevent an erroneous assessment that would lead
to the mistaken assumption that legal requirements for the deprivation of life would
be met.325
3. Minimization of Risks Caused by the Use of Firearms
Finally, the risks that may occur with the use of firearms, namely injury and death,
have to be minimized. Hence, it has to be ensured that assistance and medical
care are rendered to any injured or affected persons at the earliest possible
moment.326
E. Findings
At this stage of the thesis, some preliminary conclusions can be made regarding the
question of which branch of international law should be applied. IHL applies in a
situation of armed conflict. If it is of non-international character, protracted armed
violence is required. Human rights law applies simultaneously, and the question
arises, which situation is regulated by which body of law? As a matter of lex
specialis, IHL rules the operations that are part of the conduct of hostilities; thus,
when a military objective is targeted, i.e. members of organized armed groups or
civilians directly participating in hostilities. Human rights law rules the operations
outside the hostilities, i.e. operations that are targeted at civilians.
325
Special Rapporteur (Execution), Doc. 08.03.2006, } 50: “[H]igh level of certainty [is] required
before lethal force is lawful. [. . .] Under human rights law, suspicion is not enough to justify a
resort to lethal force.”; ECtHR, McCann Case, Application No. 18984/91, Judgment 27.09.1995, }
206 ff; Gross, Thwarting Terrorist Acts, p. 225.
326
Basic Principles on the Use of Firearms by Law Enforcement Officials, Article 5 (c). See also
ECtHR, Andronicou, Constantinou Case, Application No. 25052/94, Judgment 09.10.1997,
where, during a rescue operation, both the hostage and the hostage-taker died.
E. Findings 113
In gray area situations, where it is unclear whether the targeted person is

protected against direct attacks, some rules under IHL have to be taken into
account. First of all, the operating forces have to do everything feasible to verify
the target as either a military or civilian one. If all precautions are taken that are
practically possible, but do not lead to an answer, it is also possible that a
presumption will provide further guidance. In the case that a civilian is targeted,
and it remains unclear whether he/she is participating directly in hostilities, and
therefore has possibly lost his/her protection as a civilian, it should be presumed
that he/she is protected. Consequently, human rights standards are mandatory in the
operation against this individual.
There may still be situations where, despite the aforementioned rules, it remains
unclear which branch of international law rules a concrete operation. This is the
case, for example, when it is unclear if a person is a civilian or a member of an
organized armed group (a party to the conflict). IHL pertaining to non-international
conflict does not rule that he/she should be considered a civilian (contrary to an
international armed conflict). The legal uncertainty of whether to apply either IHL
or human rights law is of particular interest when the operating forces have to resort
to lethal force. To approach this problem, it will be taken into question whether the
requirements for the use of lethal force, under both branches of law, are similar in
some ways. If the criteria are not in great opposition, it is of less importance to
assign the operation to one of these two bodies of international law. The operating
forces can behave on the basis of the similar criteria. Conversely, if the criteria are
rather different, behaviour has to be based on either IHL or human rights; thus, an
assignment to one of them is required.
Hereafter, the requirements under both branches of international law, as analy-
zed in previous sections, are compared. It is questioned whether they are rather
different or similar. The comparison is focused on the legitimacy of the use of lethal
force and on the restrictions.
I. Legitimacy of the Use of Lethal Force: Military Objective

and Legitimate Purpose
In IHL, there is no rule that grants a licence to kill. There is also no rule that states
that operating forces have to capture rather than to kill. Instead, IHL recognizes that
the goal of war is to defeat the adversary. Accordingly, it strongly presumes that
killing is generally necessary to achieve these goals, thus, that lethal force may be
directed, in particular, at members of armed forces and organized armed groups, as
well as against civilians during the time that they participate directly in hostilities.
Human rights law uses a different concept – killing is generally prohibited. The
ICCPR and ACHR both stipulate that no one shall be arbitrarily deprived of his/her
life. The argumentum e contrario implies that a non-arbitrary deprivation of life is
lawful, but only in exceptional cases. The term “arbitrary” is not defined. It relates
to different criteria, in particular to a legitimate purpose, such as self-defence or the

defence of any other person, and the prevention of an escape from a lawful arrest.
Hence, IHL and human rights apparently differ considerably with regard to the
legitimate use of lethal force. The legitimacy is based, on the one hand, on a
military target (members of regular armed forces, of organized armed groups and
civilians participating directly in hostilities), and on the other hand, on a legitimate
purpose (self-defence and prevention of escape from a lawful arrest). Nevertheless,
it can be questioned whether the requirements are met in certain cases simulta-
neously. For example, there might be a case where the targeted person is a member
of an organized armed group, or a civilian directly participating in hostilities, and
coincidentally, a situation of self-defence or the prevention of escape from a lawful
arrest is given. This would mean that, despite the differences, there would be a
convergence of the requirements of both branches.
II. Restrictions: The Necessity-Factor and the “Least Harmful

Means” Requirement
IHL also presumes that, in certain situations, there is not a need to kill, namely
when a person is rendered hors de combat. He/she falls under this safeguard not
only when he/she is incapacitated to continue his/her participation in hostilities, but
also if he/she still has the capacity to do so, but, for any other reason (even prior to a
capture), it is obvious to the operating forces that he/she will discontinue the hostile
acts. In this situation, the degree of force that may be used against him/her is
determined by the necessity-factor, which can consist of giving him/her the chance
to surrender, or, in proceeding with an arrest. The safeguard is an exception to the
strong presumption that lethal force is necessary in armed conflict.
In human rights law, the term “non-arbitrary” does not only require a legitimate
purpose to resort to lethal force, but uses further restrictive requirements, in
particular, absolute necessity and proportionality. All of these accumulative
requirements have to be met, which underlines the exceptional character of when
lethal force is perceived to be legitimate. Capture must be attempted instead of
killing. Absolute necessity requires that a warning be given previous to the use of
lethal force, except in situations when it would be clearly inappropriate or pointless
to do so.
In the Israeli High Court judgment on targeted killing, a “least harmful means”
requirement was developed. The court based the requirement on human rights law.
Melzer analyzes the requirement, and denies that this ruling originated exclusively
from human rights. Instead, it can be similarly developed based on the principle of
military necessity under IHL.327 Accordingly, the degree of force is determined by
the necessity-factor, as defined in Section C.III.2, “The Principle of Military
327
Melzer, Israel’s High Court Judgment on Targeted Killing, pp. 91, 95 ff.
E. Findings 115
Necessity”. Previously, it was also held that the principle of military necessity does
not apply directly, since the lex specialis rule of the safeguard of a person hors
de combat is pertinent. In this ruling, however, the necessity-factor similarly
determines the degree of force that is allowed to be applied against persons who
fall under the safeguard. Consequently, Melzer’s conclusions could be concurred
upon, at least in part. The necessity-factor can prohibit a higher degree of force if, in
the concrete situation, a lower degree of violence could also fulfil the goals of war.
Therefore, Melzer’s conclusion is that IHL and human rights obviously have
something in common in regards to the “least harmful means” requirement.
Moreover, the Basic Principles on the Use of Firearms by Law Enforcement
Officials obliges law enforcement officers to identify themselves and issue a clear
warning. The aim of such behaviour is to give the person a chance to surrender.
Previously, it was held that the degree of force against a person rendered hors de
combat could consist of giving him/her the chance to surrender.328 Accordingly, it
is possible that in the law of hostilities, an operating force must identify itself and
give a clear warning.329 Hence, in both branches of law, the standards can be very
similar in certain situations. The similarity is quite obvious in the case that a person
is in the power of the operating forces, thus, does not resist further, and no longer
represents a threat, i.e. self-defence is no longer given.
Nonetheless, care should be taken in order to prevent translating the necessity-
factor into the “least harmful means” requirement. First of all, the intermingling of
human rights and IHL terminology is not very helpful. Moreover, as is shown
hereafter, in human rights, absolute necessity and proportionality imply concrete
requirements that are not met by IHL. Consequently, the field of application of
the necessity-factor and the “least harmful means” requirement are not necessarily
the same.
III. Precautionary Measures
IHL obliges the parties to the conflict to take precautionary measures.330 Their
purpose is to materialize the protection of the civilian population. Consequently, the
operating forces have to do everything (feasible) to verify that a person is a member
of regular armed forces, of an organized armed group, or a civilian directly
participating in hostilities, and that the principle of proportionality is in effect.
Hence, the precautionary measures concern the principles of distinction and
proportionality.
In Section D.VIII, “Precaution, Control and Organization of the Operation,” it
was explained that the European Court on Human Rights interpreted absolute
328
See Section 3.C.III.3.c(6), “Proviso regarding Safeguard”.
329
See Section 3.C.III.3, “Safeguard of a Person Hors de Combat”.
330
See Section 3.C.V, “Precautionary measures”.
necessity (and proportionality) to mean that operating forces have to prevent an

escalation of violence when killing would become necessary. This leads to an
obligation to take precautions; in particular, to control, and organize the operation.
Everything has to be undertaken in order to capture the adversary, prior to attempting
to kill them. Accordingly, a sufficient set-up of law enforcement officers must be
employed. Moreover, moments during which a capture is feasible have to be taken
advantage of.
It should be asked if the obligation to employ a sufficient set-up and to capture the
adversary at an appropriate moment is ruled similarly in IHL. Under IHL’s principle
of military necessity, the degree of force is determined by the necessity-factor in a
concrete situation.331 (Hence, it is questioned whether killing is necessary in a
certain situation.) This does not lead to the obligation that parties to the conflict
must operate at a moment when it can be expected that a lower degree of force would
suffice to achieve the goals of war.332 Thus, they do not have to take advantage of the
moment when it can be expected that the enemy can be neutralized with a capture
and killing would not be necessary. Similarly, IHL does not impose that more
measures be taken to facilitate a capture by avoiding lethal force, which might be
given by a sufficient set-up, as analyzed previously.333 It would be unrealistic to
impose such a rule on situations of armed conflict.
The precautionary measures in IHL do not oblige a sufficient set-up to be
employed by the operating forces and a capture to be executed at an appropriate
moment. Hence, the meaning of precautionary measures differs in human rights and
in IHL. The similar terminology could be considered “faux amis”.
IV. Proportionality
Proportionality in IHL relates to a balancing act between the military advantage that
is targeted, and collateral damage that is not targeted. Thus, the losses of bystan-
ders’ lives, which are not targeted, are taken into account. This must not be
excessive. Proportionality in human rights is related to a balance between the
objective of the limit to the right to life, and the loss of life of the targeted
individual.334 Both costs and benefits are related to the killing of a single person,
i.e. the advantage achieved by his/her death is balanced with the loss of his/her life.
The fact that under IHL, proportionality relates to the lives of bystanders, while,
331
The situation is given when an individual falls under the safeguard of a person placed hors de
combat. See Sections 3.C.III.2 and 3.C.III.3.
332
Such a rule cannot be concluded by combining the principle of precaution with the principle of
military necessity. The former is combined with the principles of distinction and proportionality,
but not with the latter.
333
See Sections 3.C.V, “Precautionary Measures” and 3.C.III.3, “Safeguard of a Person Hors de
Combat”.
334
See Section 3.D.IV.2, “Content of the Rule”.
E. Findings 117
under human rights, it is related to the targeted person, might suggest that different
standards are provided in each body of law. Thus again, similar terminology might
not have the same meaning.
In human rights, the balancing of an individual’s life reflects the typical situation
of the use of lethal force in a law enforcement operation. Normally, only targeted
persons lose their lives. In an atypical situation, bystanders can also lose their lives.
In this case, the balancing act would include their deaths. Hence, if the killing of the
targeted individual causes injury or death to bystanders, this has to be taken into
account in balancing the costs and benefits of the operation. For example, if
individuals aim to misuse an aircraft to commit a terrorist act by flying it into a
building. Subsequently they hijack an aircraft transporting innocent passengers, in
which a considerable number of people would be killed. Measures that are taken by
the government to prevent the terrorist act would be regulated by human rights
standards (unless it occurs during hostilities). If shooting down the aircraft were
decided upon, a necessity and proportionality assessment would be required.
Shooting down the aircraft must be the government’s only opportunity to prevent
the terrorist act. A criterion for the principle of proportionality would be that the
shooting would cause the incidental death of the passengers. Their deaths must be
balanced with the advantages achieved by them being killed (i.e. saving the
peoples’ lives in the building). If their deaths were not excessive, the shooting
would be proportional.335
The proportionality standards set by IHL relate to typical situations of armed
conflict, namely hostilities. In atypical situations outside hostilities that are regu-
lated by human rights, similar standards can be provided.
V. Prohibition of and Restrictions on Certain Means and Methods
The prohibition of and restrictions on certain means and methods of war336 relate to
typical situations of armed conflict. Hence, these special rules are not reflected in
human rights standards. Therefore, said rules are generally only applicable in
situations of armed conflict.
VI. Summary
IHL obliges operating forces to do everything feasible to verify if the targeted

person is a member of regular armed forces, of an organized armed group, or a
335
The German Federal Constitutional Court holds that the death of innocent passengers is
unlawful under the German Constitution in its decision of 15.02.2006, 1 BvR 357/05, }} 118 ff.
336
See Section 3.C.VI, “The Prohibition and Restrictions of Certain Means and Methods”.
civilian directly participating in hostilities. If the verification does not indicate that
the targeted person is a member of the aforementioned categories, it is a civilian
who is targeted and human rights law regulates the operation. In the case of doubt as
to whether a civilian is directly participating in hostilities, IHL presumes that he/she
is protected (thus, not directly participating). Again, human rights pertain to the
operation.
In cases where it remains unclear whether IHL or human rights regulates the
operation, it is taken into question if the requirements of the use of lethal force are
similar. On the one hand, there are certain similarities between the two bodies; in
particular, both branches require that resorting to lethal force be legitimate and
stipulate restrictions on doing so. In particular, the restrictions have some common
roots. This leads to a convergence of the requirements of both branches. On the
other hand, the requirements are restricted more severely in human rights law.
Namely, an escalation of violence has to be prevented by employing a sufficient set-
up of law enforcement officers and by proceeding with a capture at an appropriate
moment, if possible. Such a ruling does not exist in IHL. In addition, there are
differences in the terminology used by IHL and human rights.
The requirements for the use of lethal force in both branches converge to a
certain degree. It remains uncertain how far this convergence goes in concrete
terms. In particular, an abstract comparison of the requirements cannot lead to the
conclusion that it does so rather broadly or narrowly. Hence, no clear guidance is
provided to the operating forces on how to behave in gray areas.
In the following Chapter 4, different cases are analyzed and this question is
discussed.
Chapter 4
Use of Lethal Force by the National Police
of Colombia in Various Operations
Abstract Despite the differences in both branches of law regarding the requirements
to kill lawfully, there is a certain degree of convergence between them. In order to
reach concrete conclusions about cases in which the requirements are met simulta-
neously, various operations of the police are assessed. This assessment shows that
the requirements can be met in various situations by both branches. The most
important are when the targeted people use firearms – in this case a killing can be
legitimate. When no firearm is used, it might be indicated that a killing is prohib-
ited. Preventing an escape by resorting to lethal force can be legitimate if no non-
lethal means are available to prevent an escape and if it can be presumed that the
targeted person would present violent behaviour in further situations.
A. Introductive Explanations
In the aforementioned Section 3.E.VI, “Summary,” it was concluded that there is a

certain degree of convergence between the requirements of the use of lethal force in
both branches of law – IHL and human rights. However, the degree of convergence
could not be defined as being either broad or narrow. It is assumed that an assessment
of concrete cases and the respective requirements under both branches of law can
contribute to providing findings in more detail. Therefore, four operations of the
National Police of Colombia are presented. Two are carried out against guerrilla
groups; thus, they seem to be regulated by IHL. The third is carried out against a
group of drug smugglers who have obvious ties to an organized armed group, and
the fourth is against a so-called “new group.” Thus, the third and fourth operations
fall into a gray area where both IHL and human rights could apply.
Following the assessment, the differences on the one hand, and similarities and
convergences on the other hand, are compared with regard to the requirements in
IHL and human rights law. Thereby, the analysis focuses on the results of the
different scenarios.
120 4 Use of Lethal Force by the National Police of Colombia
I. The Concerned Police Units
Three of the four operations are carried out by a unit called “Mobil Squadrons of
Carabineers” (“Escuadrones Móviles de Carabineros” (EMCAR)), and the fourth is
carried out by the “Command of Special Operations” (“Comando de Operaciones
Especiales” (COPES)). Both are dependent on the “Directors of Speciality”
(“Directores de Especialidades”).1
1. EMCAR
The EMCAR is under the responsibility of the “Department of Carabineers and

Rural Security” (“Dirección de Carabineros y Seguridad Rural”). They fulfil
different functions, such as guaranteeing security to rural zones and populations.
In particular, they are responsible for supporting the systematic recovery of the
police’s presence all over the country, with emphasis in populated centres and
zones of production, agriculture and cattle. They are the front line of action against
illegal armed groups, and they fight against guerrilla fighters, paramilitaries and drug
smugglers. In May 2008, there were 54 squadrons of the EMCAR that supported the
police in different departments, and 14 squadrons specialized in coca eradication
operations. Each squadron is composed of 120 officials.2 It is foreseen that the
structure will be strengthened.3
2. COPES
The COPES is under the responsibility of the “Department of Citizen’s Security”

(“Dirección de Seguridad Ciudadana”). Part of its function is to operate at the local
and national level in situations of crisis, as well as to be a permanent force to realize
operations, support or train other groups. It is an elite unit composed of some 250
police officers. Most of its operations are carried out in urban areas; however some
operations take place in rural areas. The rural operations are often carried out
against guerrilla fighters. Compared to the EMCAR, the COPES conducts more
precise and shorter operations.
1
The chain of command is the following: President of the Republic, Minister of Defence,
General Director of the National Police, General Sub-director, General Inspector, and Directors
of Specialty.
2
Source: National Police of Colombia, Guı́a para la utilización de los escuadrones móviles de
carabineros.
3
Source: Colombian Ministry of Defence, Logros de la Polı́tica de Consolidación de la seguridad
democrática – Mayo 2007.
A. Introductive Explanations 121
II. Justification of the Identified Operations
In this chapter, the requirements of the use of lethal force in both IHL and the
international law of human rights are assessed in concrete operations. It is
attempted to find further differences and similarities between the rulings of each
branch of law. Since the findings concern these specific operations, and may not
necessarily be generally applicable, the presented operations must have particular
importance. Hence, each operation is supposed to occur frequently. This does
not mean that the whole operation is continuously repeated under the same
circumstances, but that it does under comparable circumstances. Moreover, the
operations are relevant to this thesis. Their qualification as operations carried out
inside or outside the Colombian armed conflict is not very clear; thus, one may
conclude that they could be regulated by both branches of international law: IHL
and human rights.
The aim of this chapter is not to present a single operation that took place only
once. Assessing whether the police met the legal requirements in specific operations
is not attempted. Instead, assessing the requirements that have to be met for the use
of lethal force is endeavoured. In order to assess them, it is irrelevant if, in the end,
the presented operation met the requirements, and if the operation was legitimate.
Therefore, it is preferable that operations be presented which are clear-cut and meet
the requirements.
It was previously mentioned that the operations represent easily repeatable
operations. They have model character. Subsequently, the value of the findings
will go beyond the scope of a single operation. In order to underline the generalized
character of a single operation, they are called scenarios.
III. Methodology of the Identification of the Four Scenarios
The author conducted a series of interviews with various officials of the National
Police of Colombia. He spoke inter alia to the commanders of the EMCAR and
COPES. In these talks, the police discussed different operations where lethal
force was used. It was also emphasised that the operations were not isolated
instances, but are repeated often, if not under the same circumstances, then under
comparable ones. Moreover, some internal reports about particular operations
were at the author’s disposal. The scenarios were drafted based on the provided
information.
A draft of the scenarios was then submitted to the interlocutors, and feedback
about the pertinence, validity and completeness was requested. Thus, the purpose of
getting feedback was to assure that the scenarios are relevant. It should be noted that
the police never asked for censorship, or anything comparable. Instead, they offered
their full cooperation.
B. General Aspects regarding the Operations
The police operations are usually divided into three phases: planning, execution and
review. Hereafter, only the first two phases, namely the planning and execution, are
dealt with. The third, review, helps to identify weaknesses of the conduct, including
breaches of law that should be corrected in future operations. It does not provide
further elements that will help to define the legal requirements for the use of lethal
force. Hence, the operations’ review will not be discussed.
Regarding the planning, it is important to know that the National Police of
Colombia established a “Local and Topographic Memory” for most of the country’s
territory.4 This is taken into consideration during the planning of each operation. It
provides some general information, such as the topography, ways of access and
communication (over land, river or air), the critical zones, the population and its
habits, political tendencies, culture, as well the local capacities in terms of sanitation,
water and telecommunication. Nevertheless, in many operations, additional and
more specific information has to be requested in order to have a complete picture of
the area and to define which tactics will be used in the operation. (Accordingly, the
police often request topographic photos of the place that have recently been taken
by aircraft). Before carrying out an operation, the weather conditions, as well as
risks caused by landmines, are taken into consideration. The police agents who are
involved are briefed about the particularities of an operation shortly before it takes
place. Finally, sanitation is ensured in order to be able to provide the wounded with
medical care. Judicial aspects are taken into account, namely, obtaining issued
orders of capture.
The police consider that a captured person, even if they are a fighter, is of a much
higher value than a killed person. Hence, lethal force is avoided as much as
possible, and capturing or inflicting injury is preferred. Only if this is unfeasible
in a concrete situation will the police rely on lethal force.
The police distinguish between impact and sustained operations. Hereafter, both
types of operations are discussed. They all take place in remote areas, in which no
civilian population is in proximity. However, it is taken into consideration that the
attacked group could escape and move towards a settlement of peasant civilians,
e.g. in order to search for shelter. In this case, the police’s tactic would not be to
shoot if this would pose a risk to civilians, and instead, it would look for other
possibilities, such as surrounding the site in order to try to capture the members of
the group.
4
Memoria local y topográfico.
C. Scenario One 123
C. Scenario One
It will be shown that this scenario is one in which the hostilities are obviously
regulated by IHL and not by human rights. Hence, it does not fall into a gray area.
The author has decided to present this scenario in order to exhaustively assess the
different requirements under IHL. Moreover, it demonstrates an additional aspect
of the Colombian case, thus providing characteristics that are relevant to the
assessment of the following scenarios. This scenario will be used as a reference
to compare the requirements of the other scenarios.
I. Planning
The objective of the operation is to thwart an attack against the civilian population,
namely the takeover (“toma”) of a village. A guerrilla group plans to assault the
village. In the past, the guerrilla group has demonstrated its capacity to deploy a
large number of fighters to complete this kind of attack. Recently, 50–100 fighters
have been deployed, and more have been used, on exception. The group has left its
camp, approached the village, and retreated into hiding, from where they will launch
their attack. No civilian population is nearby. According to police intelligence, the
guerrilla group possesses specialized weaponry (usually AK-47s, M60 machine
guns, points 50, as well as home-made grenades and cylinders). The village is
situated in a rural area in which police officers are sometimes present,5 sometimes
not. In any case, the local police force does not have the capacity to launch an attack
outside the village.
Hence, the EMCAR is planning to intervene in order to attack the guerrilla group
before it can launch its assault. In addition to this first objective, EMCAR also has
the goal of capturing as many members of the guerrilla group as possible. Lethal
force will only be used against them if capturing them is unfeasible. In order to
capture as many fighters as possible, the police will use a large number of officers
for their mission (they plan on using two to three times more than the expected
number of guerrilla fighters). The exact number of police officers depends on
the number available the level of risk, as well as the available technical support,
in particular, of the air force. Moreover, a long operation that could last up to
20 hours will be prepared. The operation’s duration depends on various factors,
such as the weather, logistical aspects, the availability of back-up military support,
and the number of fighters involved. The exact duration will be determined during
the operation.
The police officers’ profile is chosen – they must be trained in rural fighting. The
necessary weaponry (usually Galil 5.56 and Fusil M16 assault rifles, and 40 mm and
5
According to the FARC’s strategy, during an operation against a military or police base, the group
employs ten times the guerrilla fighters than the police and military at the base.
IM 26 grenades), as well as other equipment that specifically helps to identify the

guerrilla’s location, namely night-vision equipment and a helicopter, is selected.
Moreover, as much aid as needed is requested from the armed forces, in this case,
from the air force.
II. Execution
The operation’s execution is characterised by three phases: localization of the area,

troop deployment, and confrontation.
1. Localization of the Area
The operation takes place in a rural area, which is characterized as being very
remote, with difficult access. It is not easy to locate the guerrilla group that is not at
the camp, but is hiding closer to the village. Consequently, the necessary equipment
is used to locate the guerrilla group; in particular, an airplane is requested to collect
intelligence. The plane might give an undesired warning to the guerrilla group that
the assault will begin. However, the exact location of the ambush is crucial, and
prevails over the risk that the guerrilla group might counter-attack.
2. Deployment of the Police
The officers are taken by helicopter to a certain point, from where they have to
march. The location of this drop-off point depends on the weather and topographic
conditions, as well as the operation’s objective. In this scenario, the guerrilla group
should be assaulted by surprise, so the drop-off site is about 10 km from the ambush
of the guerrillas. Moreover, the assault will be carried out at night.
3. Confrontation
The police officers who are closing in on the guerrillas are aware that the guerrillas
might be forewarned (this might be inevitable due to the noise from marching),
especially by the guerrilla group’s lookouts who might transmit information to the
group that the police are in sight. The police are not equipped with instruments that
would allow them to know exactly how far away they are from the ambush.
Moreover, the jungle provides the police with very poor visibility.
All the guerrilla members are in uniform, have distinctive signs, and openly
carry weapons. The group is formed in a triangle with the vertex facing the police.
Once its members see the police officers closing in, they start shooting. This occurs
when the police are about 15 m away from the first guerrillas. At this time, the
C. Scenario One 125
police are formed into an L-shape. This means that the officials are divided into two
units, each one sent to the two closest sides of the triangle. This helps to obstruct
the guerrilla fighters from passing. Close-combat techniques are used. This is
characterized by the police and the guerrilla fighters running and shooting at the
same time, all of whom are very exhilarated and agitated once the shooting begins.
It takes place in an area where visibility is limited, due to the thick-forested jungle.
All of this leads to difficulty in shooting targets precisely and avoiding lethal force
by only causing injury to the adversary. The operation can take place in the same
area or it may move location, depending on whether the guerrilla fighters withdraw.
The confrontation lasts some eight hours. It comes to an end when there is no more
shooting from the side of the guerrillas, and none of its members are suspected to be
in close proximity to the police.
At the end of the confrontation, most guerrillas manage to escape, two are
arrested (after being wounded), and two are killed by police gunfire.
III. Legal Assessment
1. Legal Framework Regulating the Scenario
In Colombia, a non-international armed conflict is taking place, so IHL pertaining

to this kind of conflict is applicable.6 Moreover, the operation is regulated by IHL,
if it is part of hostilities and not a mere law enforcement operation, which would be
regulated by human rights.7 This requires that the operation targets an organized
armed group. According to the police’s intelligence, the operation targets a guerrilla
group. In the scenario, it is not specified whether they are targeting FARC or ELN.
As both are parties to the conflict8, the lack of clarification does not matter. IHL
pertaining to non-international armed conflict regulates this scenario.
2. Attack of a Military Objective
An attack that includes the use of lethal force must be launched against a military
objective, such as members of an organized armed group.9 This requirement is
obviously fulfilled. Moreover, the members of the group that are targeted must
perform combat functions (that are indicated by the person wearing a uniform, a
distinctive sign, or openly carrying weapons.) The members of the group that are
6
See Section 2.A, “Armed Conflict not of International Character – Classification of the Colombian
Case”.
7
See Section 3.B.III, “Which Body of Law Regulates the Matter?”
8
See Section 2.A.I.3, “Non-state Parties to the Colombian Armed Conflict”.
9
See Section 3.C.II, “Principle of Distinction and Prohibition of Indiscriminate Attacks”.
attacked wear a uniform, have distinctive signs, and openly carry weapons.
Furthermore, if the attacked individual does not perform military functions, he/
she must not be attacked. This requires that the person abstain from hostile acts, and
not be involved in the hostilities. It is not indicated that there is someone who does
not perform military functions among the targeted group. This would be strange, if
not contradictory, since the group is in hiding for a military operation – taking-over
a village.
When attacking, the adversary must still be a member of the organized armed
group. Since the persons are members of an armed group, and are not participating
as civilians in a hostile act, the individual must definitively withdraw from combat
functions. This occurs when he/she leaves the group, or remains a member, but
now exclusively performs political functions. A sign of disengagement from the
adversary is unnecessary.10 Since the members of the guerrilla group are about to
launch a military operation – the takeover of a village – there is no doubt that they
remain active members at the moment of the police’s attack.
No medical or religious personnel who are exclusively assigned to their respective
duties may be attacked.11 It is unknown whether there are such personnel among
the targeted group. The lack of this exact information could be an infraction of a
precautionary measure. Each party to the conflict must do everything feasible to
verify that targets are military objectives, as well as to cancel or suspend an attack if
it becomes apparent that the target is not a military objective.12 Accordingly, the
police and in particular, their intelligence, have to do everything feasible to verify
this issue. They have to take all the circumstances, including humanitarian and
military considerations, into account. In this thesis, the scope of this obligation will
not be assessed for the Colombian context in general or for the different scenarios
in particular. The answer to this question depends on a series of parameters that
would go beyond the scope of this thesis. Accordingly, it should be assumed that the
police did everything feasible to verify the issue, without having obtained better
intelligence.
As exact information is not provided, different scenarios are possible. The most
probable one is that one member of the group has medical skills. However, it cannot
be assumed that this is his/her exclusive task, and that he/she will not participate
directly in the assault. In the contrary case, if police intelligence provided the
information that there was an individual exclusively assigned to medical duties,
in the first place, the police have to do everything feasible to identify him/her, and
not to attack him/her as a matter of the principle of distinction. If, during the
police’s attack, it is impossible to distinguish him/her (due to physical proximity
or confusion during the assault), the issue becomes a matter of proportionality and
is assessed hereafter.
10
See Section 3.C.II.6.d(2), “Members of Organized Armed Groups”.
11
See Section 3.C.II.4.b(2), “Exceptions”.
12
See Section 3.C.V.1, “Precautionary Measures with Regard to the Principle of Distinction”.
C. Scenario One 127
To conclude, the guerrilla group and its members may be targeted due to their
membership of an organized armed group. Therefore, it is unnecessary to assess
whether there are civilians participating directly in hostilities that may be attacked
due to their activity (participation).
3. Restriction of Having Been Rendered Hors de Combat
The measures of attack can be restricted if the targeted person is placed hors de
combat. In particular, no lethal force must be used, and only those measures are
allowed that, by their kind and degree of force, are indispensable to maintain the
person hors de combat with the minimum expenditure of time, life and physical
resources. In particular, the attacked person falls under the safeguard if he/she is
defenceless because of unconsciousness, or being shipwrecked, wounded or sick.13
During the operation, two members are wounded and are captured afterwards. If
the wounds require medical care and this leads to the defencelessness of the
individuals, they must not be killed unless they do not abstain from hostile acts.
Also, they must not be killed if, for obvious reasons to the police, the two will
discontinue their participation in hostilities; thus, no longer resist. If the latter is
given only after the arrest, they are protected from that moment on.
4. Restriction Due to the Principle of Proportionality
Under the principle of proportionality, the use of force can be restricted. This would
be the case if incidentally a protected person would be affected by the police’s
attack. In particular, if the attack caused excessive collateral damage it would be
prohibited.14 In the current scenario, persons protected against direct attacks could
be civilians or medical personnel assigned exclusively to their respective duties.
The estimation of excess is a matter of precautionary measures.15 Accordingly,
during the planning, the police must do everything feasible to assess whether the
attack may be expected to cause the loss of a protected person’s life, which would
be excessive in relation to the anticipated advantages of the attack. Moreover, if this
only became clear at a later stage, after the planning, the police have to do
everything feasible to cancel or suspend the attack. For the assessment of excess,
the frustration of the guerrilla’s takeover of the village, the killing and capture of
some of its fighters on the one hand, and the killing or wounding of civilian and/or
medical personnel on the other, must be balanced.
13
See Section 3.C.III.3, “Safeguard of a Person Hors de Combat”.
14
See Section 3.C.IV, “Principle of Proportionality”.
15
See Section 3.C.V.2, “Precautionary Measures with Regard to the Principle of Proportionality”.
In this scenario, it is not indicated that a protected person is present at the site
where the guerrillas will be attacked. Hence, in this scenario, there is no need to
assess the requirement of proportionality.
5. Further Precautionary Measures
All feasible precautions must be taken to avoid, and in any event, to minimize,
incidental loss of civilian life, injury to civilians, and damage to civilian objects.16
The police have taken into account the possibility that, at a certain stage, a civilian’s
physical integrity could be jeopardized if the site of the hostilities was close to
civilians, or if they were used as human shields. In this case, the police would
change the conduct of the operation. It can be questioned whether it is necessary to
plan an operation in detail, when the incidental loss of civilian life is a possibility.
This plan can only be made when the circumstances and risks involved are known.
In particular, a plan can be necessary when the risks are high. In the present
scenario, the risk is not high. It is only a theoretical possibility, without knowing
the concrete circumstances in which it could occur. Hence, it is inadequate to
establish a concrete plan. However, the police have to be aware of the risk and
adapt their conduct accordingly, in the case that the risk becomes clear during the
operation.
Finally, sanitation is ensured in order to be able to provide the wounded with
medical care. This facilitates a minimization of incidental loss of life and unnecessary
suffering, since the wounded can be treated as soon as possible.
6. Prohibition and Restriction of Certain Means and Methods
Denying quarter or killing, injuring or capturing by resort to perfidy are prohibited.

Moreover, certain weapons are prohibited, while others are restricted.17 It is not
indicated that the police relied on denial of quarter, perfidy or weapons that are
prohibited or restricted.
D. Scenario Two
This scenario reflects an attack launched by the police against a so-called “new
group”. As said in Chapter 2, “The Situation in Colombia,” it cannot be concluded
that these groups are parties to the conflict per se. Instead, each respective group has
to be assessed in order to conclude whether it fulfils the criteria, according to which
16
See Section 3.C.V, “Precautionary Measures”.
17
See Section 3.C.VI, “The Prohibition and Restriction of Certain Means and Methods”.
D. Scenario Two 129
it can be qualified as a party to the conflict. If the group does not fulfil the criteria, it
has to be qualified as an ordinary criminal group. Hence, the present scenario falls
into a gray area, and may be regulated by both IHL and human rights.
I. Planning
The operation will be carried out against a so-called “new group”. The group is
composed of about 200–400 members that form units of 12–15 individuals. The
group claims that these units protect the civilian population from guerrilla attacks,
and calls itself “anti-guerrilla”. The group has a certain hierarchy, and the various
commanders award themselves military rank according to their level of command.
The group has influence in the area, and mostly travels by motorbike and off-road
vehicles. When en-route, they often wear camouflaged uniforms.
The police objective of this operation is to strike a sustainable blow at the group
by attacking one of their camps, where 80 members are expected to be. The police’s
goal is to capture as many of the new group’s members as possible. Lethal force is
only supposed to be used if it is necessary. Since the local authorities do not have
the capacity to launch an attack on its own, EMCAR units are requested as backup.
The camp is located in a rural area outside a village. It is not as remote as a
typical guerrilla camp. The group has specific weaponry at its disposal, such as AK-
47s, AK-45s, FAL18, IM 26 and M-79 hand grenades, 60 mm mortar, M60 machine
guns, revolvers and pistols. Their ammunition is limited.
Based on the collected information, a decision is made that police officers that
are trained in rural fighting should be used in this mission. The needed weaponry is
defined (usually Galil 5.56, M 16 fusils, and 40 mm and IM 26 grenades), as well as
other equipment, such as night-vision equipment. The police expect a sustained
operation that will last up to a couple of days. Nonetheless, the confrontation is
expected to be of rather low intensity, due to the limited ammunition of the adverse
group, and the fact that it typically does not search out confrontations with state
forces. Hence, the EMCAR will launch the attack with one to two times more
policemen than the expected number of members of the group.
II. Execution
The police know the location of the camp. It is in a rural area, but not in the jungle.
The policemen can be deployed to it either by helicopter or over-land. In this
case, the police prefer to execute an over-land assault, in order to better use the
element of surprise, and avoid helicopter noise that would tip off their adversary.
18
“Fusil Automatique Leger”.
Accordingly, they will attack at night, when most of the adverse members are
sleeping. When closing in on the camp, the police will be in an L-shape, i.e. attack
from two sides. The site has better visibility than in Scenario One. When the police
are 100–200 m from the camp, they identify themselves and demand that the group
members surrender.
Traditionally, Colombian paramilitary groups have not searched-out confrontations
with state forces. This attitude has continued with the new groups. Accordingly, the
group will not try to respond with heavy military force. Nonetheless, at the moment
that the police launch the attack, the members of the new group cannot be sure if
they are indeed being attacked by state forces (although the police have identified
themselves), and not another armed group, such as guerrillas. Accordingly, the
group reacts with firearms and shouting loudly to stall the police, in order for the
commanders to have time to escape. More and more of its members run around and
attempt to escape. The police continuously close in on the group, and shoot. The
shooting lasts until the moment that the group is finally sure that it is being attacked
by the police.
During the shooting, one group member is fatally shot, and two others are
wounded by the police. They were shot while running away, with the police
following them. All were tense and had fast pulses. The wounded are captured,
along with ten other members, most of who surrendered. Many others managed to
run away. The fact that so many members surrendered can be explained by the fact
that once the group understood that it was being attacked by the police, and not
another armed group, its members did not resist further. Instead, they simply
attempted to escape.
IHL pertaining to non-international armed conflict is applicable to this scenario,

since the operation takes place in an armed conflict. Thus, the principle of precaution
under IHL applies. As was explained in Section 3.C.V.1, “Precautionary Measures
with Regard to the Principle of Distinction,” it is a matter of law that the police
have to do everything feasible to verify that their targets are military objectives.19
Subsequently, they must do everything feasible to obtain all the information that
is practical and possible, taking all of the circumstances at the time into account,
including humanitarian and military considerations. Based on this information,
they must conclude whether IHL or human rights regulates the operation.
19
It can be questioned whether the police, in particular their intelligence, have done everything
feasible to verify how to qualify the group correctly. Since the detailed analysis of this question is
not of interest to this thesis due to its own complexity, it will be assumed that the police have
done so.
D. Scenario Two 131
1. Requirements of IHL
a) Legal Framework that Regulates Scenario Two
IHL regulates the present operation if it is considered part of the conduct of hostilities,
and not one of law enforcement that is ruled by human rights. This requires that the
operation be designed to cause direct harm to another party to the conflict, thus to an
organized armed group. Therefore, the targeted group must be a party to the conflict
(organized armed group), which requires a minimum degree of organization, so that
the group can be perceived as an actor different to that of the civilian population.20
Wearing a uniform and carrying weapons facilitate the distinction between members
of an organized armed group and the civilian population. However, as such, a uniform
and weapons cannot be decisive criteria. Otherwise, any criminal organization could
convert itself into an organized armed group just by wearing uniforms and openly
carrying weapons. Therefore, it is decisive that the group has the capacity to carry out
military operations that reach the threshold of a non-international armed conflict, i.e.
protracted military operations against another party to the conflict.
According to the information provided by police intelligence, the new group has
some ammunition, but it is limited. The group calls itself a “counter-guerrilla”
group. This indicates that the group claims to conduct military operations against a
party to the conflict. However, this single claim is not decisive. Otherwise, criminals
could just declare that they too conduct military operations against a party to
the conflict, in order to convert themselves into a party to the conflict. Objective
elements, such as protracted military operations against guerrillas in the past or, at
least having the capacity to do so, are significant. This is unknown.
In this scenario, both qualifications are comprehensible. On the one hand, one
could conclude that the group is not a party to the conflict. If no guerrilla-unit were
close to the area of operation, the claim that the new group attacks guerrillas would
not seem to be true. Moreover, their weaponry is limited, and therefore, insufficient
for protracted military operations. Finally, one could argue that, in the case of
doubt, a person has to be considered a civilian. However, as this would relate to the
status of the person as either a civilian or non-civilian, i.e. member of an organized
armed group, one would look to Article 50.1 AP I, which is not necessarily
applicable to a non-international armed conflict.21 Thus, some doubt remains.
Following this view, the group would be one of (organized) criminals.
On the other hand, one could conclude that the group is a party to the conflict. This
would be the case if the adversary, in particular, the guerrillas, were close. Then the
paramilitary’s claim that its fight against the guerrillas would be based on facts. One
could argue that limited weaponry is not a decisive factor in this case. If the guerrilla
group close to the area of operation were also insufficiently armed, the ammunition
available to the new group could be sufficient to carry out military operations against
20
See Section 2.A.I.2.a, “Degree of Organisation”.
21
See Section 3.C.II.7, “Presumption in Situations of Doubt”.
the guerrillas. (An attack against public forces is unrealistic, since the group would not
search-out such an assault.) Moreover, one could conclude that “protracted military
operations” are not required in Article 3 GC I–IV, but that a single operation can lead
to its applicability.22 In addition to this criterion of the qualification of an organized
armed group, it is required that the group meets a further requirement: it must have a
minimum infrastructure that allows it to implement its obligation under IHL. This
is indicated if a sufficient structure exists that enables the group to give orders to
implement IHL, and to have executive measures, such as punishment, if orders are not
followed.23 The group is characterized by a clear hierarchy of commanders at
different levels. In the information provided, however, it is not indicated that the
chain of command is indeed able to give orders that can be executed. Nonetheless, it
can be assumed that this is the case, since the group is (most probably) composed of
former members of the AUC, which means that it is not difficult to create a structure
with a functioning chain of command. This chain of command facilitates the capacity
of the group to implement IHL. Whether IHL is implemented, and respected in the
end, is not part of the requirement. Hence, one can assume that this requirement is met.
According to this view, the group would be a party to the conflict.
To conclude, if one estimates that the group is one of (organized) criminals, the
operation is regulated by human rights. Conversely, if one holds that the group is a
party to the conflict, IHL is applicable. In the following, further requirements of the
use of lethal force in IHL are analyzed, and later, those of human rights.
b) Attack of a Military Objective
Lethal force is allowed (it is strongly presumed to be necessary) if the operation is

targeted at a member of an organized armed group. At the same time, they must
not be members who exclusively perform political, medical or religious functions,
but members who, at the time of the assault, perform combat functions. Similarly, as
stated in the aforementioned scenario, the exact information is not provided. The
police, before launching its operation, have to do everything feasible to verify that
its targets are members who perform combat functions. It is indicated in this scenario
that this requirement is met. Insofar, arguments in the assessment of the previous
scenario are made reference to.24 Hence, lethal force can be used against them.
22
The argument would be based on the view of the IACiHR in the Abella Case.
23
See Section 2.A.I.2.a, “Degree of Organization”.
24
The persons attacked are located in the group’s camp. They wear uniforms and openly carry
weapons. There is no indication that one of the members performs political or religious functions
exclusively. With regard to a member’s medical functions, it is possible that a member of the
group has medical skills. However, it cannot be assumed that he/she would perform those duties
exclusively, due to the lack of medical care needed: the group consists of only 80 men/women and
it can be presumed that the group usually takes advantage of the nearby medical institutions. Since
the members are at the camp, it is not very convincing to hold that any of them are former members
who have left the group. Hence, the members of the group are a military objective due to their
membership of an organized armed group.
D. Scenario Two 133
c) Restrictions Due to the Safeguard of a Person Hors de Combat
Lethal force can be prohibited if the targeted person is placed hors de combat.25
Lethal measures would only be allowed if their type and degree of force were
indispensable to maintain the person hors de combat with the minimum expenditure
of time, life and physical resources.
(1) Defencelessness Due to Unconsciousness, Being Shipwrecked,

Wounded or Sick
Two members are wounded and subsequently captured in this operation. Due to
their state of being wounded, they must not be attacked, i.e. not killed if they are
defenceless and in need of medical care. It is not indicated that they did not abstain
from hostilities; accordingly, the proviso does not apply.
(2) Clear Expression of the Intent to Surrender

During the operation, most members who are captured have already surrendered. If
they give a clear sign of their intent to surrender, they must not be attacked. It is not
indicated that they continued to participate in hostilities, thus the proviso does not
apply to them. Hence, the police have the right to arrest them, but not to inflict any
further harm that is unnecessary to keep them hors de combat.
(3) To Be “in the Power” of the Adversary

For a person to be “in the power” of the adverse party, the circumstances of a
concrete situation must indicate, to a reasonable person, that the attacked indivi-
duals will obviously cease from offering resistance and defending themselves from
the operating forces.
During the operation, the group resists in the first stage, since it does not know
its attacker and, furthermore, wants to gain time to escape successfully. At a later
stage, the group recognises the attackers to be the police and decreases its use of
firearms as time passes. Thus, one can question if this situation is similar to the one
described in the ICRC Commentary, when land forces might have the adversary at
their mercy by means of overwhelmingly superior firing power that allows them to
force the adversary to cease combat. In terms of ammunition, the police have much
more at their disposal. However, they attack with one to two times as many police
agents as members of the group. Thus, it is difficult to conclude that the police will
have overwhelmingly superior power that would allow them to have the entire
25
A person is placed hors de combat due to three reasons: being defenceless due to unconsciousness,
or being shipwrecked, wounded or sick; by clearly expressing their intention to surrender; and
by being in the power of the adversary, cf. Section 3.C.III.3, “Safeguard of a Person Hors de
Combat”.
group at its mercy. Moreover, members of the group try to escape and do not abstain
from hostile acts, therefore, force is allowed under the proviso.
However, it is possible that individual members of the group can be considered
hors de combat during the operation. If a member runs away and is chased by the
police, but comes to a point where he/she no longer defends him/herself or resists,
from that point onwards, that individual must not be attacked. For example, if an
individual member runs away, throwing his/her weapon away in order to rid him/
herself of the weight and allow him/her to run more easily, and eventually stops
running from exhaustion, the individual might be rendered hors de combat. The
individual does not necessarily intend to surrender, for he/she has not expressed
this intention clearly. But he/she would be in the power of the police if it were
obvious to the police that the individual will no longer defend him/herself or will
continue his/her escape. In these circumstances, it could be concluded that the
individual is “in the power” of the police and must not be killed. Only a degree
of force that is indispensable to maintain the person hors de combat, with the
minimum expenditure of time, life and physical resources, is allowed. In the case
that a member does not abstain from hostile acts or attempts to escape, the degree of
force used by the police can include lethal force. For example, if the individual
continues to run away and cannot be stopped by means other than lethal force, he
may be killed.
To conclude, it can be extremely difficult to draw a line between which adverse
individuals have already been placed hors de combat, and which are still participating
in the military operation. However, one must remember that it must be obvious to a
reasonable person that the adverse individual will no longer continue his/her
participation, i.e. neither defends him/herself, nor continue to resist. Therefore,
the chaos that ensues during an operation has to be taken into account, for it alters
the assumption of what is “obvious.” Still, it is interesting to note that in IHL, the
situation approaches a limit where lethal force is still presumed to be necessary, if
not with regard to the entire group, than at least to individual members.
d) Principle of Proportionality
As in the aforementioned scenario, it is possible that the use of force is limited, due
to the principle of distinction. This would be the case if a protected person would be
affected by the attack, causing excessive collateral damage. This is referred to in the
assessment of the previous scenario; thus, since nothing indicates the presence of
protected persons in the operation, it will not be concluded whether the attack met
the requirement of proportionality.
e) Further Precautionary Measures and the Prohibition and Restriction of Certain

Means and Methods
With regard to the obligation to take further precautionary measures, i.e. to take all
feasible precautions to avoid and to minimize the incidental loss of civilian life,
D. Scenario Two 135
injury to civilians, and damage to civilian objects, and to use particular means and
methods of warfare, there are no new elements in the current scenario that have not
been discussed in the previous one. Therefore, Scenario One should be referenced.
2. Requirements of the International Law of Human Rights
If one concludes that the targeted group is composed of civilians, and not of
members of an organized armed group, the operation is regulated by human rights
law.26 Thus, depriving one of one’s life must not be arbitrary, and the following
requirements have to be met:
Foremost, a legitimate purpose, such as is defined in Section 3.D.III, “‘Legitimate

Purpose’ and ‘Absolute Necessity,’” is required.
(1) Defence of One’s Life or that of Another

Self-defence or the defence of others is a legitimate purpose. This requires that
there be an imminent threat that would cause death or serious injury. Moreover, the
defence must be aimed at protecting oneself or others from unlawful violence.27 In
this scenario, when the police identify themselves, the group responds with the use
of firearms and continuous shooting. The shooting can cause the death and severe
wounding of the attacking policemen. The use of firearms by the members of the
group is unlawful, since they do not have the right to resist the police’s attempt to
capture them. Hence, an imminent threat is given.
(2) Prevention of Escape by Lawful Arrest

A second legitimate purpose can be given by the prevention of escape from a lawful
arrest.28 The police’s goal is to arrest members of the group. There is no sign
that the arrest would be unlawful: some warrants of arrest were already issued;
moreover, the members of the group have committed a crime in flagrante.29 The
members of the group attempt to escape from arrest and use firearms to help their
escape. The police respond and use firearms to prevent the individuals’ escape.
26
27
See Section 3.D.III.5.a, “Legitimate Purpose”.
28
See Section 3.D.III.5.a, “Legitimate Purpose”.
29
The crime in question would be, according to Article 340 Colombian Criminal Code: “Concierto
para delinquir: Cuando varias personas se concierten con el fin de cometer delitos, cada una de
ellas será penada, por esa sola conducta, con prisión de tres (3) a seis (6) años”.
They do not shoot to kill, but in an attempt to make arrests. Hence, they use firearms
to prevent escape from a lawful arrest.
In addition to having two legitimate purposes (defence and prevention from lawful
arrest), the use of lethal force must be of absolute necessity. This occurs if other
means are ineffective or remain without the promise of achieving the operation’s
purpose. Moreover, “absolute” requires a stricter and more compelling test of
necessity than normal. Capture causes less harm than killing; therefore, capture
must be attempted. In this respect, the objective of the operation must not be to kill,
but to arrest. If firearms are used, the police must give forewarning of its attack, and
identify themselves as the police force. Giving warning and identifying themselves
is unnecessary if it would risk a police officer’s life.30
In this scenario, the goal of the operation is to capture and not to kill. However,
the members of the group attempt to escape and use firearms while doing so.
Consequently, the possibility of arresting them is extremely lowered. Two main
options remain for the police: either it discontinues the operation, or it responds
with firearms. To discontinue the operation would facilitate members of the group’s
escape despite a legal obligation to prosecute them. Moreover, as the use of
firearms, and even lethal force, is recognized as legitimate to prevent escape, the
police may choose to use firearms. Before firing, they have to identify themselves as
the police, and issue a warning. The police identify themselves before the members
of the group start shooting. It seems that the police did not give a warning.
However, they were forced to respond quickly, since the police officers would
otherwise have risked being killed. Hence, a warning is unnecessary. Finally, when
using firearms, the police must shoot to injure and not to kill. In this scenario, the
group members ran away, and the police officers followed. Moreover, visibility was
poor at night. Their hearts were racing because they were distressed. This does
not facilitate them being able to shoot precise targets, allowing them to shoot to
injure and not to kill. Consequently, the use of lethal force seems to be absolutely
necessary.
c) Temporal Scope of Legitimate Purpose and Absolute Necessity
The above requirements of legitimate purpose and absolute necessity have to be

met at the time when lethal force is used. It is possible that a legitimate purpose
is given at a certain stage, but not at a later one.31 In the present scenario, two
members of the group are wounded and ten others surrender. They do not continue
30
See Section 3.D.III.5.b, “Absolute Necessity”.
31
See Section 3.D.VI, “Temporal Scope”.
D. Scenario Two 137
to use their firearms or run away. Hence, life and limb are no longer threatened, and
the attempt to escape is abandoned. Accordingly, the legitimate purposes of self-
defence and the prevention of escapes from lawful arrest are not met when the
individuals are wounded or surrender. Hence, they must not be killed, but arrested.
d) Proportionality
The advantage achieved by killing an individual must be in proportion to the loss of

life. This is of particular relevance when lethal force is used in order to prevent
escape from a lawful arrest.32 This is the case in the present scenario. Consequently,
it has to be assessed whether the risk that occurs to the police if their adversary
escapes is proportional to the loss of life of members of the group. A group
members’ life would have more weight than the prevention of an escape from lawful
arrest, if, for example, it is known that the members do not pose any threat to life or
limb, and they are not suspected of having committed violent offences, or if they are
only suspected of having committed a simple theft. As stated in Section 2.A.I.3.b,
“Paramilitary Groups”, paramilitary groups are often accused of committing severe
violations against civilians, including massacres, disappearances and “cleansing”
processes. It can be said that this is similar with the so-called “new groups.” If the
police do not stop the group’s escape, there would be the risk that these violations
would continue to be committed by the group. Thus, their escape would pose a
serious risk to civilians’ life and limb.
Moreover, the use of lethal force is not only used to prevent escape from a lawful
arrest, but also for self-defence. Hence, killing is used to protect life, in any case.
Accordingly, it is in proportion to the achieved advantages.
e) Precaution, Control and Organization of the Operation
The operation has to be planned, organized and controlled by a general set-up that
minimizes the recourse to lethal force to the greatest extent possible. In order to
achieve this, different aspects have to be taken into account.
(1) Arrest at an Appropriate Moment

The police must precede an arrest at an appropriate stage, in order to prevent an
escalation of violence at a later stage, when arrest might no longer be possible and
lethal force would be absolutely necessary to achieve a legitimate purpose.33 In the
present scenario, the police attack at night in order to take advantage of the element
of surprise. However, attempts to escape are more likely to succeed because the
32
See Section 3.D.IV, “Arbitrariness and Proportionality”.
33
See Section 3.D.VIII.1.a, “Arrest at an Appropriate Moment”.
operation occurs in the dark. Thus, for this reason, the members of the group can be
encouraged to escape. The attempt to escape, however, represents a legitimate
purpose to kill. Therefore, one may question whether attacking during the daytime
would have avoided many attempts to escape, and the subsequent need to shoot to
kill. A daytime arrest seems unlikely since the police would not manage to close in
on the group like they could in the dark. The chances that the new group would
know about the police’s operation are higher during the day, and therefore, they
could be easily warned and successfully escape before the police even arrive at the
camp. Hence, it cannot be assumed that making an arrest at another moment would
have avoided the need to kill.
(2) Sufficient Set-Up

The operation has to be conducted by a sufficient number of law enforcement
officers so that there are better chances of arresting their adversaries and assuring
their surrender.34
It can be noted that the police operate with one to two times more police officers
than the expected number of members of the group. At the end of the operation, ten
members are arrested who had mostly surrendered. The group reacted with the use
of firearms in the beginning of the attack for two reasons: the attacker was not yet
identified as the police, and it facilitated their escape. Once the members of the
group recognized the police, the use of firearms decreased. This indicates that
resistance was not very strong once the police were identified. It is therefore
improbable that resistance would have been even lower if the police had operated
with more officials. Accordingly, it cannot be concluded that the death of one of the
members would have been avoided if the police had operated with more officers.
(3) Available Information

All available intelligence information has to be taken into account in order for the
police to operate based on facts.35 In order to assess this question, a series of
parameters have to be taken into consideration, thus, this question goes beyond
the scope of this thesis. Accordingly, it should be assumed that this criterion was
fulfilled.
(4) Minimization of Risks Due to the Use of Firearms

It has to be ensured that assistance and medical aid are provided to any injured or
affected persons at the earliest possible moment.36 This can be assumed to have
occurred, since the police made sure that adequate sanitation was provided.
34
See Section 3.D.VIII.1.b, “Sufficient Set-up”.
35
See Section 3.E.VIII.2, “Evaluation of Available Intelligence Information”.
36
See Section 3.E.VIII.3, “Minimization of Risks Caused by the Use of Firearms”.
E. Scenario Three 139
E. Scenario Three
This scenario takes places between the police and the guards of a coca plantation.
The guards have some ties to an organized armed group. As will be shown,
depending on the strength and the quality of the ties to the organized armed
group, the operation can be considered as hostilities or law enforcement. Hence,
it falls into the gray area.
I. Planning
The operation will be carried out against a group of armed guards who are protect-
ing an important coca field. The area is situated in a zone within the influence of an
organized armed group that could be a guerrilla group or a so-called “new group.”
(In the latter case, there is a further difficulty of qualifying the group as a party to
the conflict, see Section 2.A.I.3.b, “Paramilitary Groups.”) For the organized armed
group, coca production and drug smuggling represents important sources of
revenue. Accordingly, the organized armed group is also in charge of protecting
the coca production. In this case, however, the organized armed group decides not
to guard the field with its own men. Instead, a group of drug smugglers organizes
this. The smugglers sent some 50 men to guard the coca field and provided them
with some rudimentary ammunition, such as AK 47s, type M60 machine guns,
points 50, as well as homemade grenades. The ammunition is limited; therefore a
few of the 50 men are unarmed. The men are mostly locals, and are not involved in
further operations of the organized armed group. It is possible that very few
members of the organized armed group are involved in guarding the coca field.
The objective of the operation is, firstly, to take control of the site. At a later
stage, individuals, who are paid by the government to do so, will destroy the coca
plantation.37 The goal is to capture the most coca field guards as possible. Lethal
force is supposed to be used only if necessary. Since local authorities do not have
the capacity to attack on their own, units of the EMCAR are requested. The
EMCAR will launch the attack with one to two times more policemen than the
expected number of coca field guards.
On basis of the collected information, the required profile of the police officers is
defined (they have been trained in rural fighting). The weaponry needed (usually
fusil Galil 5.56 and M 16 and 40 mm and IM 26 grenades) will be at their disposal,
as well as further means, such as night vision equipment. Moreover, it can be
expected that landmines have been planted in the area, in particular around and
within the coca plantation. The police expect an operation that could last up to a
37
These men are called “grupo móvil de erradicación”, and are normally paid by the state agency
“Acción Social de la Presidencia”.
couple of hours, and a confrontation of rather low intensity, due to the attacked
group’s poor ammunition and lack of experience in armed confrontations.
II. Execution
The location of the plantation and the place where the guards are located is known.
The policemen can be delivered to it either by helicopter, or overland. In this
case, the police prefer to launch overland in order to avoid helicopter noise, and
to increase the element of surprise. Accordingly, it will launch the attack at night,
when most of the guards are sleeping. The guards are not placed in the same
location, as would be the case in a camp of an organized armed group, but at
different points in the plantation. Due to the group’s position at different points in
the plantation, it is not easy for the police to encircle them. For this reason, the
police are formed in a base line (unlike the “L” formation in the other scenarios).
When the police are at a distance of 200–300 m from the guards, the police identify
themselves and call on the guards to surrender. At the same time, they change their
position by surrounding the guards on one side, in order to close in the guards from
that direction. The concerned guards start shouting in order to alert the others. Some
of them start shooting. Most start running away, attempting to escape; in particular,
the few unarmed individuals. The police continue to close in on the guards and
shoot. Some policemen have closed in on three guards, and are at a distance of
100 m. These guards fire heavily in order to ensure their escape. The police wound
one of them and kill another. The first is captured, along with two other guards.
Most of the guards manage to escape. Due to the risk of landmines, the police do not
try to follow them.
IHL pertaining to a non-international armed conflict is applicable in this scenario,

since the operation takes place in an armed conflict. Thus, the principle of precaution
under IHL applies. As was explained in the aforementioned scenario38, it is a
matter of law that the police have to do everything feasible to verify that their
targets are military objectives. Subsequently, they must do everything feasible to
obtain all the information possible and to conclude, based on this information,
whether IHL or human rights law regulates the operation.
38
See Section 3.C.V.1, “Precautionary Measures with Regard to the Principle of Distinction”.
1. Requirements in IHL
a) Legal Framework Regulating the Present Scenario
The operation is regulated by IHL if it is considered hostilities. Therefore, the

operation must aim to directly hamper the military operations, or directly damage
the military capacity of the adversary. The operation would not cause direct harm
if only general efforts are targeted, such as the production of weapons by the
armament industry. In the latter case, the operation would be allocated to one of
law enforcement, regulated by human rights law.39
The operation aims to destruct the coca field. The field is relevant to the armed
group, as it is a major source of income that helps the group to build-up its financial
capacity. The revenues help strengthen its military capacity, since weapons and
other military equipment can be purchased. Thus, the coca production represents
preparatory measures of a general character that help to build up the group’s
military capacity. Hence, the destruction of the field does not directly harm military
capacity, only general efforts.
The operation can be considered part of the hostilities if, for other reasons, the
organized armed group is directly hampered. This would be the case if the armed
guards of the coca plantation were members of the armed group. Accordingly, the
captured and killed guards would directly weaken the military capacity of the
organized armed group, and therefore, the operation would lead to a direct military
advantage. In the present scenario however, the guards are not members of the
organized armed group, but of organized criminal groups.40 Accordingly, they
have to be perceived as civilians. An attack against civilians can directly hamper
the military capacity of an organized armed group if the civilians are directly
participating in hostilities that support the respective group. The harm to the
organized armed group would, at the same time, represent a direct military advantage
for the police.
In the present scenario, it might be the case that the guards directly participate in
hostilities by supporting the organized armed group, which would lead one to
consider the operation to be one of hostilities. There are two legal possibilities to
consider; the guards could be considered simple civilians directly participating in
hostilities, or civilians incorporated due to a de facto affiliation, for example, as
contractors or employees exercising combat functions. The latter requires a de facto
affiliation with the group’s consensus and direct participation on a regular basis. In
this case, the guards would not be regarded as civilians, but as non-civilians.41 It is
interesting to note that the criterion of direct participation must be fulfilled,
similarly to the case where the guards would be held as simple civilians directly
participating in hostilities. The former differs insofar as the temporal scope
39
40
See Section 2.A.I.3.c, “Organized Criminal Groups, namely Drug Smugglers”.
41
See Section 3.C.II.4.b(3), “De facto Affiliation”.
changes, while a civilian participates on a sporadic and spontaneous basis, a de

facto affiliated member of the group does so on a regular basis. Moreover, this has
to be done with the consensus of the group.42
Both constellations require direct participation. Thus, the following section starts
with the assessment of this criterion and follows with the additional requirements
of de facto affiliation.
b) Direct Participation
The acts or activities that are assessed for direct participation do not concern coca
production. As held before, coca production concerns general war efforts and
involvement in the production does not lead to direct participation in hostilities.
The acts and activities of the guards must therefore be related to more aspects of the
conflict than just the production. Insofar as it is relevant, they guard the field with
firearms. In order to qualify this as direct participation, the constitutive elements, a
threshold of harm, direct causality, and belligerent nexus have to be fulfilled.43
(1) Threshold of Harm

The threshold of harm is given if the guards of the coca plantation intend to
affect the military operations or military capacity of, in this case, the police,44 or
alternatively, to inflict death, injury or destruction on persons or objects not under
the effective control of the acting individual.45 In qualitative terms, a threshold of
harm can be reached if the specific act results in harm of a specifically military
nature. This requires that the guards interfere with military operations of the
police through specific acts, for example, by preventing, restricting, interrupting
or disturbing its deployment.
In this scenario, the guards endeavour to hinder the police who are coming
across the coca field. For this purpose, they use firearms, which lead to the
possibility of killing a police agent. Hence, the threshold of harm is reached.
(2) Direct Causality Between Hostile Acts and the Threshold of Harm
A direct causal link between guarding the coca field by relying on firearms and
affecting the military capacity of the police is required. This is given since the acts
of the guards shape the police directly.
42
See Sections 3.C.II.4.b(3), “De facto Affiliation” and 3.C.II.6.d, “Temporal Scope: Discontinu-
ing the Loss of Protection”.
43
See Section 3.C.II.6, “Direct Participation of Civilians in Hostilities”.
44
In this case, the threshold of harm would be reached in qualitative terms.
45
In this case, the threshold of harm would be reached in quantitative terms.
(3) Belligerent Nexus

The act in question — guarding the coca field with firearms — must have, in the
first place, a general nexus to armed conflict. Hence, it is questioned if coca
production and its protection by force can be considered to be independent from
the Colombian armed conflict. This cannot be answered generally. Many different
groups with different links to organized armed groups perform this kind of activity.
In some cases, organized drug smugglers acting on their own behalf, without
relying on others, perform it. In these cases, it is difficult to assume a general
belligerent nexus. In other cases, however, drug smugglers do not only act on their
own behalf, but preserve close links to organized armed groups. The links can
consist of paying “taxes” for protection, land, facilities etc., or even for abandoning
the production process and letting organized armed groups refine and traffic the
drugs. In these cases, coca production and forceful protection of the field cannot be
considered to be independent from the armed conflict.
In this scenario, there are clear links between coca production, armed protection
and the organized armed group, since the latter gains some finances from the
activity, and this enables it to strengthen its military capacity. Moreover, it seems
to be implicated in the guarding of the coca field, since apparently, some of its
members are involved. Hence, it is indicated that the general nexus is given.
The general nexus is insufficient to qualify the act as “direct participation in
hostilities”. It is furthermore required that the act in question is so close to the hostilities
that it can be considered to be “part of it”. Accordingly, the guarding of the field must
be designed to support the organized armed group and to harm the police. The plan to
support the organized armed group and to harm the police does not depend on the
guards’ intentions. Instead, an objectified intention is needed. This must be interpreted
from the perspective of the police, who take into account both the information
available to them, and the circumstances prevailing at the relevant time and place.46
The more the police can reasonably assume that the guards act on behalf of, or
with considerable support from, the organized armed group, the more a belligerent
nexus would be given. Thereby, it is indecisive how lucrative the drug smuggling is
for the organized armed group, but how deeply it is involved in the protection of the
coca field, and how closely it is linked to the armed guards.
In this scenario, it seems that very few members of the organized armed group
are involved in guarding the coca field. This is the only link between the organized
armed group and the guards of the field. However, it is unconfirmed if there are any
members involved, but there is suspicion. The situation is not taken for granted. It
remains doubtful whether the guards have lost their protection as civilians. It seems
to be possible that the legal presumption pertains to this scenario, according to
which a civilian is presumed to be protected in a situation where it is doubtful if he/
she has lost the protection as a civilian. The loss of protection can only be considered
if there is more than a mere suspicion of direct participation.47 In this case, the only
46
See Section 3.C.II.6.a(3), “Belligerent Nexus”.
47
See Section 3.C.II.7, “Presumption in Situations of Doubt”.
element that indicates direct participation is based on the suspicion that the
organized armed group employed some of its members to reinforce the guards.
This can hardly be concluded to be more than a mere suspicion. Accordingly, the
presumption would lead to the conclusion that the guards are civilians not directly
participating in hostilities on behalf of the armed group.
However, the qualification can change in different circumstances. For example,
the organized armed group provides ammunition, chooses the coca field guards, and
trains them. Would this lead to direct participation in hostilities? This is unlikely.
However, if the organized armed group even supervises the guards, and they are
under the command of the organized armed group, the qualification must probably
be changed. The guards should surely be considered civilians directly participating
in hostilities if they are sporadically involved in further military operations. Hence,
in rather altered circumstances, IHL would pertain to the scenario. Hereafter,
the further requirements under IHL are assessed for the case that the altered
circumstances are given.
(4) Temporal Scope: Spontaneous, Sporadic Participation

In Scenario Two, it was assessed whether the individual is a member of the armed
group at the moment of the police’s attack. Hence, it is questioned whether
membership exists at that moment. This differs in the present scenario if one
assesses whether the individual is a civilian directly participating in hostilities.
In this case, it has to be analyzed whether his/her hostile act (and not his/her
membership) is continuing, or has ceased.48
First of all, by responding to the police with firearms, the guards take part in
hostilities. The hostile act by the civilians must still continue. The police close in
on the guards, and, when calling on them to surrender, the guards start shooting
and running away. In this situation, the police kill one guard. Accordingly, the
individual is killed when he/she is still performing his/her hostile act.
(5) De facto Affiliation

If the individual participates directly in hostilities, not only on a sporadic, but on a
regular basis with the consensus of the group, he/she can be treated as a member of
the group due to a de facto affiliation. This requires that the individual be close to
the organized group, by accompanying the group in its operations on a regular
basis, and his or her submission to the responsible command of the group.49 In this
scenario, the guards do not accompany the organized armed group on its operations.
Apart from guarding the coca field, they are not involved in further operations of the
organized armed group. Hence, even if the activity would be qualified as direct
48
See Section 3.C.II.6.d(1), “Civilians”.
49
See Section 3.C.II.4.b(3), “De facto Affiliation”.
participation, the criterion is not fulfilled, since it is not performed on a regular

basis. This qualification can change in different circumstances, e.g. once the guards
are more and more involved in further military operations of the organized armed
group.
(6) Summary
At its conception, the operation to destroy the coca field has more elements of
law enforcement, pertaining to human rights law. In particular, the presumption,
according to which a civilian is supposed to be protected, is pertinent. However, the
qualification can change if the organized armed group protects the field. In this
case, the police’s operation would be regulated by IHL. Moreover, IHL would
also pertain if the guards could be considered civilians directly participating in
hostilities. This requires that they perform a hostile act that can be qualified as
direct participation in hostilities. It can be assumed that guarding the coca field with
firearms, hindering the police’s journey across the field, reaches a threshold of harm
in qualitative terms that directly causes harm to the police. However, the belligerent
nexus is not necessarily given. A general nexus to the armed conflict is only given if
the group of drug smugglers to whom the guards belong have some close ties to a
party to the conflict, for example, by paying “taxes” for protection, land, facilities
etc., or even by abandoning the production process and letting the organized
armed group refine and traffic the drugs. Moreover, the belligerent nexus requires
that the act in question is so close to the hostilities that it can be considered to be
“part of it”. Accordingly, the guarding of the field must be designed to support the
organized armed group and to harm the police. The more the police can reasonably
assume that the guards are acting on the organized armed group’s behalf, or with its
considerable support, the more a belligerent nexus would be given. In this scenario,
the suspected handover of some members of the organized armed groups to the
guards of the coca field is insufficient to constitute a belligerent nexus. However,
this could change in another case, where the organized armed group provides the
ammunition, chooses the coca field guards, trains and supervises them, as well as
if the guards sporadically participate in further military operations of the group.
Moreover, if the guards also have close links and participate in further military
operations of the organized armed group on a regular basis, they can be considered
to be individuals incorporated into the group due to de facto affiliation. This
requires that they be under the responsible command of the organized armed group.
c) Restrictions Due to the Safeguard of a Person Hors de Combat
As assessed in the aforementioned scenarios, lethal force can be prohibited if the

targeted person falls under the safeguard. Only the measures that, by their kind and
degree of force, are indispensable to maintain the person hors de combat with the
minimum expenditure of time, life and physical resources, would then be allowed.
(1) Defencelessness Because of Unconsciousness, Being Shipwrecked, Wounded

or Sick
During the operation, one guard is wounded and later captured. Due to the state of
being defenceless and in the need of medical care, he/she must not be attacked, and
in particular, not be killed. Since it is not indicated that he/she does not abstain from
hostilities, the proviso does not apply. A similar conclusion can be held with regard
to the two other guards that are captured.
(2) To Be in the Power of the Adversary

A person is in the power of the adverse party if the circumstances of the concrete
situation indicate, to a reasonable person, that it be obvious to the operating forces
that the attacked individual will no longer participate in hostilities, i.e. not defend
him/herself nor resist.
Similarly, as in the aforementioned scenario, it can be questioned whether the
whole group of guards has to be considered hors de combat, since they might be
considered to be at the police’s mercy by means of overwhelmingly superior power,
to the point where they can force the guards to cease combat. The conclusion would
be similar to the previous scenario; thus one should make reference to it.
However, it is possible that individual guards can be considered to be in the
police’s power. In the present operation, a few guards run away. Some of them are
unarmed. However, as long as they run away, they may be attacked under the proviso.
Only the degree of force that is indispensable to maintain the person hors de combat
with the minimum expenditure of time, life and physical resources is allowed. If his/
her escape cannot be stopped by means other than lethal force, he/she may be killed.
However, if he/she stops running because he/she is tired, the degree of force cannot
include killing, and only capture is allowed. This requires that the situation be
obvious to the police, in particular, it must be manifest that there would be no
additional risk to the police officers if an arrest is made instead of killing. The same
can be concluded with regard to the guards, who, during the first stage of the
operation, are armed, but throw away their weapons later on, and finally stop running,
without necessarily giving a clear sign of surrender. (See the previous scenario, where
a similar situation was discussed with regard to the members of the new groups.)
d) Restrictions Due to the Principle of Proportionality, Further Precautionary

Measures and the Prohibition and Restriction of Certain Means and Methods
With regard to the principle of proportionality, the obligation to take further

precautionary measures, i.e. to take all feasible precautions to avoid, and, in any
event, to minimize the incidental loss of civilian life, injury to civilians, and damage
to civilian objects, as well as the use of certain means and methods, there are no new
elements in the present scenario that have not been discussed in the aforementioned
scenarios. Therefore, one should make reference to them.
2. Requirements in the International Law of Human Rights
It was previously considered more appropriate to think about this type of scenario in
terms of law enforcement, regulated by human rights. This view can be based on the
argument that, in a case of doubt as to whether a civilian is protected, he/she must
be presumed to be protected.50 Accordingly, the operation takes place outside of the
hostilities, and is regulated by human rights law. It is a law enforcement operation
regulated by human rights, in particular by Article 6.1 ICCPR and Article 4.1
ACHR, whereby a deprivation of life must not be arbitrary. In the following, the
respective requirements are assessed.
Firstly, a legitimate purpose, such as self-defence, the defence of others, or the

prevention of escape from awful arrest, is required.
Self-defence or the defence of others requires that there is an imminent threat of
death or serious injury. Moreover, the defence must be aimed at protecting someone
from unlawful violence. Unlike the previous scenario, in this scenario, only some
members of the group shoot after the police have identified themselves. While some
men are unarmed, others choose not to use their weapons at the beginning of the
attack, but do so only after other guards do so. Only those who are armed and fire
their weapons can cause death or serious injury to the attacking police officers.
Their use of firearms is unlawful, since they do not have the right to resist the police’s
attempt to capture them. Hence, a situation of defence is given and lethal force
maybe used against the guards. The guards who do not shoot (and in particular, the
few unarmed ones) do not threaten police officers’ life or limb. Accordingly, the
guards who do not shoot must not be killed. However, a different conclusion could
be reached if, during the operation, it becomes too confusing for the police to
recognize who is shooting at them and who is not. It is rather probable that the
police cannot differentiate between those who shoot and those who do not, due to
their close proximity and the poor visibility at night. Even though it is improbable
that, at a certain moment during the operation, one or several police officers are
confronted by one of these unarmed guards at a very close distance, and can
recognize that he/she is unarmed, self-defence would not occur, and the police
would not be allowed to use lethal force to capture the guard.
Moreover, similar to the previous scenario, in this scenario, the police endeavour
to arrest members of the group. There is no sign that the arrest would be unlawful:
some warrants of arrest were already issued; moreover, the guards of the coca field
50
This differs from the previous scenario where there was doubt as to the status of the person as either
a civilian or non-civilian, i.e. a member of an organized armed group. In such a constellation, there
is no presumption under (customary) IHL pertaining to non-international armed conflict, see
Section 3.C.II.7, “Presumption in Situations of Doubt”.
commit a crime in flagrante51, and furthermore, they attempt to escape from arrest,
using firearms. The police respond, and return fire in order to prevent the guards
from escaping. Hence, the prevention of an escape from a lawful arrest occurs.
In addition to the two legitimate purposes, the use of lethal force must be absolutely
necessary. As said earlier, the objective of the operation must not be to kill, but to
precede an arrest, since capture causes less harm than killing. In the case that the
police use firearms, prior identification of the police, as well as a warning, must
occur. A warning is unnecessary if it would risk the life of a police officer.
In this scenario, the aim of the operation is to capture and not to kill. However,
the coca field guards attempt to escape and use firearms in doing so. Consequently,
the police decide to respond with firearms. Similarly as in the previous scenario, in
the present one, the police identify themselves before the guards of the field start
shooting. As the further elements are similar to the ones of the previous scenario,
one should refer to it.
c) Temporal Scope
The foresaid requirements of legitimate purpose and absolute necessity have to be

met at the time that lethal force is used. It is possible that the legitimate purpose is
given at a certain stage, but is no longer given at a later one. In the present scenario,
one guard is wounded and from that moment on, he/she stops using firearms
and gives up his/her attempt to escape. Accordingly, from this moment on, the
legitimate purposes are no longer given. Moreover, similar to the previous scenarios,
the legitimate purposes would not be given in different circumstances either. For
example, if during the attacked group’s attempt to run away, a guard threw his/
her weapons away and stopped running. In this case, he/she must not be killed,
but arrested.
d) Proportionality
The advantage achieved by killing an individual must be in proportion to that

individual’s loss of life. In this scenario, lethal force is used for two purposes. It
is used for self-defence, or the defence of another person and against the armed
guards that fire at the police. For the purpose of self-defence, killing is undertaken
51
The crime in question would be according to Article 340 Colombian Criminal Code: “Concierto
para delinquir: Cuando varias personas se concierten con el fin de cometer delitos, cada una de
ellas será penada, por esa sola conducta, con prisión de tres (3) a seis (6) años”.
to protect life. Hence, in balancing one life against another, no disproportion can be
detected.
If the situation allows identifying the guards who are unarmed and consequently
not shooting, lethal force is used exclusively to prevent escape from arrest (and no
self-defence would be given). In this case – as held earlier as improbable – the risk
that can occur if the members manage to escape and whether this risk is in
proportion to the loss of their lives has to be assessed. The group member’s life
would have more weight than the prevention of escape from a lawful arrest if it is
known that the guards do not pose any threat to life or limb, and they are not
suspected of having committed violent offences. Hence, their behaviour in other
situations is relevant. If, in another situation, the concerned guards are armed and do
not hesitate to use their firearms, it is obvious that they represent a threat to life or
limb. This is quite probable, since it can be assumed that their guarding the coca
field is not a single activity, at that moment, but a continuous one and that there is a
concrete risk that, at another moment, they would be armed and use their firearms.
Accordingly, lethal force would be proportionate. In particular, it might be assumed
that they present such a threat when it is known, or very certain, that the guards
would continue to protect coca production by using firearms. The closer the links
are to the organized armed group operating in the zone, the easier the threat can be
assumed. For example, when they are trained by the group to use firearms, or when
they participate sporadically, or even when they participate on a continuous basis in
the military operations of the group.
Conversely, if it is certain that an unarmed guard will remain unarmed and not
rely on force in the future, it may be concluded that killing would be disproportionate.
The involvement of a guard in drug smuggling, as such, does not directly threaten
the life or limb of other people, and thus, lethal force would not be in proportion to
the offence committed. If one concludes this, the police must not kill the guards
even though it was their only chance to prevent the guards’ escape. It has to be
noted that the probability of this is extremely low, and the consideration is of
academic, rather than practical relevance.
e) Precaution, Control and the Organization of the Operation
The operation has to be planned, organized and controlled by a general set-up that
allows minimizing, to the greatest extent possible, the recourse to lethal force.
In the first place, it can be questioned whether the operation is conducted by a
sufficient number of law enforcement officials, so that the police have a better
chance of arresting the guards or assuring his/her surrender. The police operate with
one to two times more policemen than the expected number of guards of the field.
At the end of the operation, three guards are arrested, and one is killed. The police
decide not to run after those who have escaped due to the risk of landmines.
Therefore, the operation is conducted in a very precise way and employing a larger
number of policemen would contradict the approach. Accordingly, it cannot be
concluded that the death of the one guard would have been avoided if the police had
operated with more officers.
The previous scenario should be referenced with regard to the requirements of
preventing an escalation of violence due to an earlier arrest, with the further aspects
of controlling and organizing the operation by relying on all available intelligence
information, and the assurance of assistance and medical care to the wounded. It
can be assumed that the requirements are met in this scenario.
F. Scenario Four
This scenario is carried out by the COPES, not by EMCAR. It is quite obviously
regulated by IHL. Nevertheless, it is assessed under both branches of international
law. It is questioned whether human rights standards can provide an adequate ruling
over this situation.
I. Planning
The objective of this operation is to neutralize a guerrilla camp, as well as its

responsible commander. The COPES do not rely on their own intelligence, but on
that provided by other police units. In this scenario, the camp is located in a remote
area, where no civilian population lives nearby. The guerrilla group is composed of
25 men. Its weaponry was identified; inter alia it has AK 47s, M60 machine guns,
points 50 as well as homemade grenades and cylinders at its disposal. A rather
recent photo of the place is provided (in the case that there were none, one would
have been requested in order to get familiar with the place before the assault began).
The group’s commander is identified, as well as the location in the camp where he
usually sleeps.
The primary objective is to capture the responsible commander of the camp; the
secondary objective is to capture other guerrilla fighters. If capture is not feasible,
lethal force will be used. The attack will occur suddenly in order to surprise the
guerrilla group. Moreover, the confrontation is very punctual and is supposed to last
between 10 and 30 min. A group composed of 12 COPES policemen will partici-
pate in the operation. They are selected according to their education and experience
that is required for the operation; in particular, there are some snipers among them.
It is certain that the site of the operation will only be at the camp. Hence, there is no
risk of harming civilians, and no other precautions need to be taken to protect them.
The assault will be carried out at night. Night vision equipment is available to the
assaulting forces. The officers will be provided with weaponry, such as tavor 5.56
and M 16 fusils, type 40 mm and IM 26 grenades, and M249 cal 5.56 machine guns.
It is confirmed that further troops will be available to intervene if they are needed.
F. Scenario Four 151
II. Execution
The guerrilla camp is identified. The police officers are taken to a place far enough
away to avoid the guerrillas’ becoming aware of the planned attack. The officers
approach the camp at night when most of the guerrillas are sleeping, and only 2–4
guerrilla fighters are guarding the place. The police form an “L” in order to obstruct
the passage of the guerrilla fighters on two sides and the police officers take their
predefined positions. All noise is avoided and the officers remain at a distance of
5–20 m from the camp. Before the shooting starts, the guerrilla commander’s
sleeping place is identified, and its guards are spotted and identified.
The police start the attack with loud shouting: “Stop. This is a police operation.
You are surrounded. Surrender!” Shooting occurs from both sides at this moment
because the guerrillas start firing at the police. The snipers now shoot the night
guards in order to neutralize them, which is complicated, on the one hand, due to the
darkness of the night. On the other hand, the fact that they shoot from a fixed
position facilitates precise targeting. Hence, “to neutralize” means that the police
make sure that the night guards are unable to participate in the fighting, either by
being killed or wounded. The police try to wound, rather than kill, them. However,
this is difficult because a wound might not be serious enough to guarantee that the
guards are unable to participate in the fighting.
Then the police try to neutralize the commander. When he is still sleeping and
lying down, it is rather difficult to target him precisely and shoot him. Hence, the
police have to wait until he wakes up and surrenders. But he wakes up very quickly,
takes his fusil, and starts to run away, without giving a clear sign of surrender. At
this moment, a sniper neutralizes him with a few deadly gunshots. Wounding him
and sparing his life is attempted, but this is abandoned for it proves too difficult.
The shooting comes to an end when most of the guerrilla fighters manage to
escape. The police do not follow them, so as to avoid being exposed to further risk.
At the end, a second member of the group is killed, and six are wounded and then
arrested. No guerrilla fighters surrender to the COPES.
1. Requirements in IHL
a) Legal Framework Regulating the Current Scenario
IHL pertaining to non-international armed conflict is applicable, and furthermore, it

regulates the current scenario for the same reason as was assessed in the first
scenario. According to the police’s intelligence, the operation was targeted against
a guerrilla group, without specifying whether it was FARC or ELN. Both are parties
to the conflict.
b) Attack of a Military Objective and the Use of Lethal Force
Lethal force is allowed (for it is strongly presumed to be necessary) if the operation

is targeted at members of an organized armed group who, on a continuous basis,
exercise combat functions. Similarly, as stated in the first and second scenario, there
is not exact information indicating something contrary; thus the analysis of the
previous scenarios can be referenced, and it can simply be concluded that the
operation is targeted at members of an organized group. They are military targets
due to their membership in the group. Lethal force can be used against them.
c) The Restriction of the Use of Lethal Force
With regard to the restriction of the use of lethal force due to the safeguard of a
person hors de combat, this scenario is similar to the first. In particular, the attacked
person falls under the safeguard if he/she is defenceless because of unconsciousness,
being shipwrecked, wounded or sick. During the operation, six members are
wounded, and later, captured. The situation is similar to that of the previous
scenarios and one should refer to them.
With regard to the principle of proportionality, the obligation to take further
precautionary measures, i.e. to take all feasible precautions in order to avoid, and in
any event, to minimize, the incidental loss of civilian life, injury to civilians and
damage to civilian objects, as well as the use of certain means and methods, is no
different in the present scenario than in the aforementioned ones. Therefore, the
former shall be referenced.
2. Requirements in the International Law of Human Rights
In the first place, a legitimate purpose is required (such as self-defence or the

defence of others), as well as the prevention of escape from lawful arrest.
Self-defence or the defence of others requires an imminent threat of death or
serious injury. Moreover, the defence must be aimed at protecting oneself or others
from unlawful violence. Similarly to the second scenario, in the current scenario,
the police identify themselves and are then attacked by the guerrilla group with
firearms and continuous shooting. The shooting can cause the death of an attacking
policeman, as well as severe wounds. The use of firearms by members of the group
is unlawful since they do not have the right to resist the police’s attempt to capture
them. Moreover, similar to the previous scenarios, the police endeavour to capture
members of the group. All of them attempt to escape from arrest by using firearms
in order to achieve their escape. The police respond with firearms in order to
prevent their escape.
F. Scenario Four 153
In addition to the two previously assessed legitimate purposes for the lawfulness of
lethal force, in this case, it is required that killing is of absolute necessity to achieve
said purposes. As stated earlier, the objective of the operation must not be to kill,
but to arrest, since a capture would cause less harm to the attacked individual. The
police must give forewarning of their attack, as well as make their identity known.
The warning is unnecessary if it would risk a police officer’s life.
In the present scenario, the aim of the operation is to capture and not to
kill. However, the guerrillas attempt to escape and use firearms in doing so.
Consequently, the possibility of arresting them is extremely restricted, and the
police decide to respond with firearms. As was similar as in the previous scenarios,
in this scenario, the police identify themselves before the members of the group
start shooting. It seems that the police do not give a warning, which is unnecessary
because they are forced to respond quickly, since otherwise they would risk
being killed. Finally, when using firearms, wounding instead of killing must be
endeavoured. As said in the previous scenarios, precise targeting is extremely
difficult, due to both the guerrilleros’ running away, and the police officers’ agitation
at a moment of low visibility. Consequently, the use of lethal force seems to be
legitimate in this case.
c) Temporal Scope
At the time that lethal force is used, the legitimate purposes must still apply. Similar
to the previous scenarios, this is not the case during the escape of members of the
group, when, for example, a single member gives a clear sign of surrender, is
wounded, or simply throws his/her weapons away and stops running.
d) Proportionality
The advantage achieved by killing an individual must be in proportion to the loss of

life. Similar to the second scenario, in this scenario, killing is attempted to protect
life, since it is used in self-defence. In addition, preventing the escape of the
guerrilla fighters from a lawful arrest is aimed at. This purpose is proportional in
the present scenario if a group member’s life has less weight than the prevention of
escape. This is not the case when it is known that they do not pose any threat to life
or limb, and they are not suspected of having committed violent offences, or are
only suspected of having committed a simple theft. As stated in Section 2.A.I.3.a,
“Guerrilla Movements”, the guerrillas are accused of acts of terrorism and
obviously pose a threat to one’s life and limb, at least to members of the state
forces. If the police do not stop the escape, there would be a risk that the group
would continue with its activities.
e) Precaution, Control and Organization of the Operation
The operation has to be planned, organized and controlled with a general set-up that
allows minimizing, to the greatest extent possible, recourse to lethal force. In the
first place, this requires conduct that facilitates the prevention of an escalation of
violence.
(1) Arrest at an Appropriate Moment

The police must precede an arrest at an appropriate stage in order to prevent an
escalation of violence at a later stage, when arrest might no longer be possible and
lethal force would be absolutely necessary in order to achieve a legitimate purpose.
In the present scenario, the police attack at night, in order to take advantage of
the element of surprise. However, the darkness also facilitates the success of the
guerrilla force’s members’ attempted escape. The attempted escape, however,
represents a legitimate purpose for killing. Therefore, one may question whether
an attack by the police at another moment, during the daytime, would have avoided
the attempted escapes and the subsequent need to kill. As held in the previous
scenarios, and also in this case, it can be assumed that an arrest would have been
much less successful and might even have failed if the operation had taken place
during the daytime. The attacked guerrillas would have been warned and have
escaped before the police would have managed to close in on the camp. It cannot be
assumed that an attempted arrest, at another moment, would have avoided the need
to kill.
(2) Sufficient Set-Up

Moreover, the operation has to be conducted by a sufficient number of law
enforcement officers, so that there are better chances of arresting the person or
assuring his/her surrender.
In the current operation, 10–12 police officers attacked a group of 25 guerrilleros.
Thus, different to the previous scenarios, the police attacked with a low number of
policemen compared to the number of members of the attacked group. Obviously,
the very low number considerably restricts the chance of capture. Moreover, the
attacked individuals might assume that they have better chances of escaping and
therefore take that risk, which leads to the need for the police to shoot to kill in
order to prevent their escape. Consequently, the police might be forced to use their
firearms. Accordingly, it seems possible that killing the two guerrilla fighters could
have been avoided if the police had conducted the operation with a larger number
of officers. However, in the present scenario, two aspects have to be taken into
consideration.
First, the police attack at night and the entire operation is based on the element of
surprise. Consequently, the guerrillas do not know how many police officers they
are being attacked by. Despite this uncertainty, the members of the guerrilla group
try to escape. Thus, one might argue that a higher number of police officers would
G. Findings 155
have led to a similar attempt to escape. However, the limited number of police
officers raises the difficulty of preceding an arrest because it cannot attack the
guerrilla fighters in the same way. Only lethal force can hinder their escape. Hence,
the surprise factor does not provide a satisfactory argument.
Second, further operations have shown that an attack with a much higher number
of law enforcement officers, in comparison with the number of attacked members of
the guerrilla group, did not lead to the surrender or to easier capture of the guerrillas.
Instead, in the majority of the police’s attacks, the guerrilla group responded with
firearms, with the aim of escaping. Hence, it is suggested that additional aspects
have to be taken into account. These aspects must lead to the conclusion that the
limited number of policemen in the operation is irrelevant, and subsequently, that
the limited chance of preceding an arrest instead of killing is also irrelevant. It must
become evident that even if the police conducted their operation with a large number
of officers, the group (probably) would have reacted similarly, and lethal force
would not have been avoided. Therefore, it is suggested that the characteristics of
the group, such as its degree of violence and capacity to (re)act violently, as well as
the members’ morality and behaviour, should be taken into further consideration. If
precedent acts of violence, such as attacks or counter-attacks are known, they can
provide information that leads to the conclusion that a similar response with firearms
and attempted escape would be undertaken by the group. For example, in the first
scenario, the guerrilla group reacted by shooting, and many members attempted
to escape, despite a considerably higher ratio of police officers deployed in the
operation than guerrilla fighters. Consequently, the limited number of policemen in
the present scenario is irrelevant because it can be supposed that a sufficient set-up
would also have led to the need to resort to lethal force.
(3) Further Aspects

With regard to the further requirements of controlling and organizing the operation
with the available intelligence information, and the assurance of providing medical
care to the wounded, the previous scenarios should be referred to. It can be assumed
that the requirements are met in the present scenario as well.
G. Findings
I. Causes of the Gray Area
The scenarios illustrate the reasons for which there is a gray area, hence a situation
where it is extremely difficult for the Colombian police to know whether IHL or
human rights regulates an operation. It can be summarized that there are two main
reasons for the uncertainty: diverging interpretations of the law, and a lack of
complete and confirmed information.
There is no strict border in differentiating between reaching and not reaching the
threshold of armed conflict. Accordingly, there are different interpretations of the
law: one considers a single military operation of low intensity to be sufficient, while
another holds that protracted armed violence is required.52 The former interpretation
assumes more easily that a certain group is a party to the conflict, while the latter
does not. In Scenario Two, one may hold that a group is a party to the conflict by
arguing with the former opinion, or denying such status, basing one’s arguments on
the latter interpretation. Moreover, it is unclear whether there is a rule in customary
IHL that pertains to non-international conflict according to which a person is
presumed to be a civilian if there are doubts about his/her status as either a civilian
or non-civilian, i.e. a member of an organized armed group.53 If one assumes that
this rule exists, it can be more easily argued that Scenario Two is regulated by
human rights and not IHL.
The diverging interpretations are unfortunate because they contribute to further
legal uncertainties. Therefore, they should be avoided and one can hope that one of
the different opinions will finally predominate.
The failure to exactly qualify this is not only caused by diverging interpretations
of the law. It happens more often due to the impossibility of having all relevant
information complete and confirmed. The parties to the conflict are obliged to do
everything feasible to verify that their targets are military objectives. The rule
recognizes that it is unrealistic that one can collect all the information that has
been confirmed by different sources; consequently, it is (only) required that every-
thing feasible has to be undertaken. In a situation of armed conflict, it is often
difficult to receive complete information. It is easy for information to be lacking,
unconfirmed or even contradictory, despite its relevance to the qualification of a
certain situation. In Scenario Two and Three, it was shown that the qualification of
an operation taking place inside or outside hostilities, and the subsequent applica-
bility of IHL, can easily change when certain parameters are altered.
In Scenario Two, it remains uncertain whether the “new group” has undertaken
military operations against guerrilla groups – an indication of a party to the conflict.
In Scenario Three, it is possible that the guards of the coca plantation belong to the
organized armed group, either as members of the group itself, are affiliated with it
on a de facto basis, or as civilians directly participating in hostilities by supporting
the group in other operations as well. The final answer can only be provided with
complete and confirmed information.
52
See Section 2.A.I.1, “Threshold of Application”.
53
See Section 3.C.II.7, “Presumption in Situations of Doubt”. It is a concurred upon opinion that it
is presumed that a civilian enjoys the respective protection if it is uncertain whether he/she
participates directly in the hostilities. However, there are doubts if the presumption can be related
to the status of the person as either a civilian or non-civilian, i.e. member of an organized armed
group.
G. Findings 157
II. Degree of Convergence between the Requirements in

IHL and Human Rights
The scenarios were not only presented in order to illustrate the causes of the gray
area. The main objective was to provide findings in more detail. Previously, in
Section 3.E.VI, “Summary,” it was held that there is a certain degree of convergence
between the requirements to use lethal force in both branches of law, without being
able to define the degree of convergence. It seems possible that the assessment of
the scenarios would indicate this in more detail.
The assessment of Scenarios Two, Three and Four led to a similar result in both
branches of international law. As the analysis relates to the scenarios, the findings
only concern the scenarios, and must not be generalized. It would be premature to
conclude that the requirements in both branches are met generally on a broad basis.
Hence, the question is: why are the results similar in the concerned scenarios? This
is analyzed hereafter. Thereby, it is questioned what the particularities and elements
of the case have to be in order to lead to the same or different results in each branch
of law. These particularities and elements of the scenarios are assessed. They are
related to the respective requirements of each branch of law. For example, it is
assessed what the legal consequences are in both branches of law when a person
uses firearms against the police, and is suddenly wounded later on.
In the following, Scenario Two and Three are dealt with first, since they are in a
gray area, while Scenario One and Four are obviously of a military character.
Hence, the conclusions of the latter might differ and complete those of the former.
1. Shooting by the Attacked Individuals and Their Attempt to Escape
In Scenario Two and Three, the use of lethal force against persons who, at an early
stage of the operation, used firearms against the police and ran away in an attempt
to escape was assessed. At a later stage, they were wounded, gave a clear sign of
surrender or discontinued their escape and threw down their weapons. It was
concluded that, in both branches of law, while at the first stage lethal force may
be used; at the later, killing is prohibited.
a) Use of Firearms by the Targeted People
During the first stage, the targeted persons shot at the police without being allowed
to do so. (The fact that they also ran away is dealt with afterwards.) In IHL, they
present a military objective. In Scenario Two, they were considered members of an
organized armed group, and in Scenario Three (in altered circumstances), civilians
directly participating in hostilities (or even de facto members of the organized
armed group). This suffices to legitimize lethal force. In human rights, a legitimate
purpose, namely self-defence, was given.
Thus, can it be concluded that a military target in IHL corresponds with legitimate
defence in human rights? The answer must be negative. One is a member of an
armed group because of their affiliation. Thus, what matters in IHL is a “to be”. A
“to do” is what matters in human rights, as the legitimate defence is based on the
behaviour of the attacker, e.g. the illegal use of firearms against a person. Moreover,
as previously shown, human rights law requires, in addition to this legitimate
purpose, absolute necessity (i.e. means other than lethal force remain ineffective
or have no promise of achieving the operation’s purpose) and proportionality (but
the test is rather positive in a case of self-defence, unlike in a situation where the
legitimate purpose is based on the prevention of escape from a lawful arrest).
Nonetheless, in the scenarios, some important elements should be emphasized,
namely the behaviour of the targeted persons. The behaviour is characterized by a
high intensity of violence. They use firearms, which can only be stopped by the use
of potentially deadly force. This aggressive behaviour leads to the legitimacy of the
killing.
b) Discontinuing the Use of Firearms
At the later stage, the attacked individuals were wounded, gave a clear sign of
surrender, or discontinued their escape and threw down their weapons without
necessarily having the intention to surrender. In IHL, they were considered earlier
to be a military objective, but are now rendered hors de combat and are protected
under the safeguard. They are in the power of the police as it is obvious to the latter
that the attacked individuals will no longer participate in hostilities, thus no longer
resist. In human rights, it was concluded that the legitimate purpose no longer holds
true (temporal scope). They stopped their attack against the police, thus there is no
longer a situation of self-defence. Hence, the concerned behaviour (being wounded,
giving a clear sign of surrender, or simply discontinuing their escape and throwing
down their weapons) leads to the same legal consequences in both branches of law.
Again, one may ask if the assessed scenarios suggest that the safeguard of a person
hors de combat and the discontinuation of a legitimate purpose that was given at an
earlier stage, are met simultaneously. Instead of providing an answer, the behaviour
of the attacked ones should be emphasized again. In the aforementioned section, it
was concluded that their aggressive behaviour leads to the legitimacy of the killing.
Now, the degree of violence has decreased and killing is no longer lawful.54
54
Previously, in Section 3.E.II, “Restrictions: Necessity-Factor and ‘Least Harmful Means’
Requirement” Melzer’s view was presented, according to which military necessity under IHL
coincides with absolute necessity under human rights standards. This analysis suggests that the
safeguard of a person hors de combat could correspond to the lack of a legitimate purpose (which
may have been given earlier, but is no longer present). Subsequently, it is rather suggested that it is
not a matter of convergence between military necessity and absolute necessity, but between (the
lack of a) military necessity and (the lack of a) legitimate purpose.
G. Findings 159
In the following, the relationship between the legitimacy of killing and the
degree of violence is analyzed in more detail.
2. Escape of Unarmed Guards of the Coca Field and Their Behaviour

in Further Situations
In Scenario Three, the coca field guards’ attempted escape was assessed. It was
noted that it is a very improbable situation that (some of) the guards are unarmed
and the police recognize this (due to the chaos of the confrontation and poor
visibility at night). Moreover, it was held that it could be assumed in further
situations that these guards would use firearms and represent a threat to life or limb.
Using IHL, it was concluded that (in altered circumstances) the members of the
group who are running away may be killed, since they present a military target
(persons who directly participate in hostilities or are even de facto members of the
organized armed group) and are not protected under the safeguard hors de combat,
due to their escape. Using human rights, it was concluded that they may be killed
since there is a legitimate purpose (prevention of escape from lawful arrest), and the
killing is of absolute necessity to achieve this purpose. In addition, the killing was
held to be proportionate, since it can be assumed that the guards will represent a
threat to life or limb at some point in the future (even though it is not the case in this
concrete situation).
When asking if the assessment indicates a convergence between a military
objective and a legitimate purpose based on the prevention of escape from a lawful
arrest, one must conclude that this is not necessarily given. As said previously, in
IHL a “to be,” and in human rights a “to do,” matters. Moreover, in the (improbable)
situation that the guards would not use firearms in the future, they would not
represent a threat to life or limb. In this case, killing them would not be proportional.
Hence, human rights law differs from IHL. In the former branch, it is relevant
whether it can be assumed that, in other circumstances, the members would cause a
threat to life or limb. Hence, it is interesting to note that human rights law requires
an analysis of elements that do not only concern the operation. The guards’
behaviour beyond the scenario has to be taken into consideration.
To summarize, escape can be a reason to resort lawfully to lethal force in IHL
and human rights. An escape is not as aggressive as the use of firearms. Therefore,
human rights law does not necessarily allow killing in these circumstances. As a
matter of proportionality, in other circumstances, violent behaviour is required (a
risk to life or limb). Hence, the behaviour must be characterized by a high degree of
violence if not in the operation itself, then in other situations.
3. Attack with a Very Limited Set-Up
In Scenario Four, the set-up of the operation was assessed, namely that the police
attacked a group of 25 men with only 12 officers. While in IHL, this aspect is
irrelevant, it is relevant in human rights, since it might hinder an arrest and facilitate
the use of deadly force. In human rights law, the operating forces are obliged to
take precautionary measures, namely to prevent an escalation of violence. A small
set-up can lead to the group’s escape, and thus, the need to stop the escape with
firearms. In the assessment it was concluded that, in this scenario, the limited set-up
does not matter because it can be supposed that a sufficient set-up would also have
led to the need to resort to lethal force: if the police had conducted their operation
with a high number of officers, the group would have probably reacted similarly.
This is indicated in further operations where, despite the police’s sufficient set-up, the
group attempted to escape.
It is interesting to note that, for the requirement of precaution, namely to operate
with a sufficient set-up, it can be relevant in human rights law to assess behaviour
not only in the concerned operation. In other circumstances, the behaviour of the
attacked individuals also needs to be taken into consideration, where they must
show a high degree of violence.
4. Summary of Escape and Limited Set-Up
In human rights law, a person recognized by the police as unarmed, but fleeing from
the police, represents a legitimate purpose. However, in addition to this, killing with
the purpose of stopping his/her attempt to escape, as the only means, must be
proportional. It is proportional if, in further situations, he/she presents a threat to the
life or limb of other persons.
An attack with a very limited set-up normally leads to the increased risk of
escalation of violence, and would therefore unlawfully resort to lethal force.
Despite this, the respective requirement could be met if it is certain that a sufficient
set-up would lead to the same level of violence. This can be indicated from past
operations.
Both requirements in human rights – proportionality and sufficient set-up –
suggest an analysis of the general violent behaviour of the attacked individual,
such that goes beyond a single operation. In IHL, it is strongly presumed that
resorting to lethal force is necessary when operating against a military objective.
Thus, one might conclude that there is no need to assess the general violent
behaviour. However, to apply IHL, an armed conflict is required. The targeted
group is required to be a party to the conflict and therefore, must have the capacity
to carry out military confrontations that reach the respective threshold (under
Article 3 GC I–IV; Article 1 AP II requires an even higher threshold). Accordingly,
in order to conclude that the operation is regulated by IHL, the general situation,
beyond the operation itself, has to be assessed. In particular, the targeted group has
to be analyzed regarding whether it should be recognized as a party to the conflict
due to its capacity to carry out armed confrontations (and to implement IHL).
Thus, it can be disclosed that under both bodies of law, it can be necessary to
assess the general violent behaviour of the targeted group. The question would be,
G. Findings 161
which elements should be taken into consideration for such an assessment, and
would they be the same under both branches?
Something interesting can be seen in Scenario Three, where the requirements
of killing under human rights are assessed. With regard to the principle of
proportionality, it was questioned whether, in other situations, the guards cause a
threat to life or limb. It was held that this could be assumed the closer the guards’
links to the organized armed group are. For example, when they are trained by the
organized armed group or when they participate in military operations of the group
on a sporadic basis, it is easier to make the assumption that they will be a threat in
the future. Earlier, under IHL, it was questioned whether the guards were a military
objective. Therefore, it was assessed whether the guards are to be considered
civilians participating directly in hostilities by supporting the organized armed
group. This requires a belligerent nexus that could be indicated if the guards are,
for example, trained by the group and participate in other (armed) operations of the
group. Hence, identical elements are taken into account in both assessments, using
IHL and human rights. If it cannot lead to the conclusion that IHL applies, it can
facilitate the conclusion that in human rights, killing an attacked individual who is
attempting to escape is legitimate.
Similarly, in Scenario Four, identical elements were assessed under both
branches of law. In human rights, it was questioned whether a limited set-up
can hinder the requirement of employing a sufficient number of officials in an
operation. It was concluded that this does not matter when the group has shown a
high degree of violence in other situations. This would be indicated if the group
reacted with aggression in other operations where the police attacked with a sufficient
set-up. In other words, the group’s capacity to carry out armed confrontation can
be part of the respective assessment under human rights. In IHL, the groups’ attack
of the police, or its reaction in other operations to the police with firearms – the
capacity to carry out military operations – is relevant for its qualification as
a party to the armed conflict. Therefore, elements that are constitutive to the
qualification of a party to the conflict can indicate that the requirement of sufficient
set-up is met in human rights. Thus, when analyzing whether IHL regulates the
operation and it is difficult to come to a clear conclusion, the assessed elements
can indicate that a limited set-up would meet the respective requirement of human
rights law.
To conclude, the National Police carry out operations in a gray area, and target
members of a group attempting to escape from being arrested. Under IHL, the
police might resort to lethal force, and it does not matter if the police operate with a
limited set-up. In human rights law, however, in the case of an escape from lawful
arrest, the principle of proportionality requires that the targeted individual pose a
risk to life or limb in other situations. Moreover, the limited set-up must comply
with precautionary measures. Both requirements under human rights law could be
met if the targeted group shows a high degree of violence in other situations. The
elements to take into account for the assessment of a high degree of violence are
similar to those that are important to qualify the group as a party to the conflict
under IHL.
5. Arrest at an Appropriate Moment
A further requirement of human rights ought to be analyzed in more detail, namely

the obligation to carry out an arrest at an appropriate moment.
In the assessed scenarios, the requirement of human rights to proceed with an
arrest at an appropriate, perhaps earlier, moment has not been detected as a
requirement that raises problems. But this can be explained by the fact that the
requirement was developed for a very special case that did not occur in the four
scenarios. The European Court of Human Rights elaborated it in the McCann
case.55 In this case, an individual was (falsely) suspected of triggering a bomb
explosion by remote control. The law enforcement officers believed that is was
necessary to kill him once they considered him to be the person who would trigger
the bomb, and concluded that he would not have been stopped by simply wounding
him. The court decided that his killing was unlawful for different reasons, such as
the failure of arrest at an appropriate (earlier) moment. The individual was observed
over a longer period of time, and during that time, there were several occasions in
which he could have been arrested. However, when intervening at the moment
where he was supposedly about to trigger the bomb, arrest was no longer possible.
The court decided that an escalation of violence should have been avoided and ruled
that, in this kind of case, an arrest has to be proceeded with at an appropriate
moment, when it is still possible. Thus, the case concerns a situation in which the
law enforcement officials observe an individual, and during this observation period,
his/her capture is possible; however, they do not take advantage of the moment and
later come to a point where it is (apparently) absolutely necessary to kill him/her.56
In the assessed scenarios, lethal force that was used against the persons was due
to their membership in an organized armed group, or the fact that he/she gave
reason for a legitimate purpose in human rights. It was not generally based on the
earlier identification of the individual; instead he/she was killed by accident in
the chaos of the operation. Only in the last scenario can a case be found where the
commander of the group had been identified earlier. Since he was not observed
earlier, and there was no chance to arrest him earlier, the respective requirement of
human rights did not represent a problem. However, if the commander had been
observed earlier, and the operating forces had had the chance to arrest him at that
time, the human rights requirement would not have been met, and the killing would
have been unlawful. For example, if the commander had been on leave earlier, and
was observed by the police during that time, the police would have been obliged to
arrest him during that time, and killing him at a later moment, where lethal force
was necessary, would have been unlawful. In IHL, this would not matter and killing
at the later moment would have been lawful (except if the commander had been
55
ECtHR, McCann Case, Application No. 18984/91, Judgment of 27.09.1995.
56
One can hold that this case is a typical targeted killing since the person who was killed was
identified and the operating forces had chosen to kill him.
G. Findings 163
hors de combat at that very moment), as IHL does not provide a rule according to
which the operating forces have to arrest at an appropriate moment.
Hence, the two branches of law differ considerably in this requirement. However,
despite the applicability of IHL, the police can decide to arrest the commander at an
appropriate moment, and not wait for a moment where lethal force is necessary. The
decision would not be seen as a matter of international law, but instead, of policy
and credibility. It can be opportune to do so, in particular, in situations of a gray
area, in order to make sure that the requirements of human rights law are respected.
It should be repeated that a court could qualify the situation as one outside of
hostilities, and accordingly apply this body of law.
Chapter 5
Main Findings and Thesis Statement
Abstract The National Police of Colombia can overcome the uncertainty of

whether to apply IHL or human rights in operations that take place in a gray area.
Foremost, as a matter of law, it must do everything feasible to verify the target as
being either military or civilian, and consequently, apply the correct branch of law.
Moreover, if it remains unclear whether a civilian participates directly in the
hostilities, the police must presume his/her protection. If it is not feasible to qualify
them, the requirements can be met in both branches. The legitimacy to kill can be
indicated if the behaviour of the targeted person is characterized by a high degree of
violence, either during the operation itself, or in other situations.
A. Main Findings
The basic question of this thesis is how the National Police of Colombia can
overcome the uncertainty of whether to apply IHL or human rights in operations
that take place in a gray area. It is asked whether international law provides a rule,
and in addition to this, if potential similarities between the two branches of law’s
requirements to kill can lead to guidance for the police in their operations in these
gray areas.
As a matter of law, the National Police have to do everything feasible to verify the
target as being either military or civilian, and must presume that a person is protected
as a civilian if it remains unclear whether or not a civilian is protected (thus, doubt
surrounds whether he/she would participate directly in hostilities temporarily).
However, law does not provide all of the answers as to which branch of international
law has to be applied, e.g. when it is impossible to qualify the targeted person as
either a civilian or non-civilian, i.e. a member of an organized armed group.
However, it is possible to overcome this uncertainty. The police can, at least in the
assessed scenarios, comply with both bodies of law when resorting to lethal force.
Accordingly, a strict assignment of the operation to one of hostilities under IHL, or as
law enforcement regulated by human rights law, becomes less important.
166 5 Main Findings and Thesis Statement
A comparison of the requirements of each branch of international law suggests

that certain requirements, such as the “military objective” in IHL and the “legitimate
purpose” in human rights, can be met simultaneously. However, the degree of
convergence could not be defined as being neither broad nor narrow. It was
concluded that necessity is required in both branches. Under IHL, the necessity-factor
determines the degree of force that may be resorted to when confronting a person
who has been placed hors de combat. Human rights law requires that the necessity is
absolute, thus a stricter and more compelling test of necessity must be employed
than normal. Moreover, in the case of an attacked individual’s escape, human rights
law requires proportionality, while IHL does not. Both branches of law rule on
precautionary measures. However, they differ. In human rights, it is required that a
sufficiently large number of officers be employed in the operation, and that an arrest
must be preceded at an appropriate moment. This obligation is not stipulated by IHL.
An assessment of the concrete operations carried out by the National Police
suggests that the more a context of general violence exists, the less important
the differences between the two branches of law become. In other words, the
requirements of each branch of law converge more easily if it can be expected
that the attacked individual or group will show aggression. In particular, it was
disclosed that when police officers assess the need for lethal force during their
operation, the intensity of violence of the single operation is relevant to IHL and
human rights law. If the degree is high due to the shooting of an attacked group or
individual, lethal force can be legitimate. If the degree of violence decreases or
even ceases, it can be indicated that no lethal force must be resorted to. If the
violence consists of an attempted escape without further shooting, the violence
represented by the group or individual beyond the single operation is relevant in
human rights law. When it is certain that the concerned individual will not cause a
threat to life or limb in the future, he/she must not be killed.
Now, one may ask if the question about the degree of violence represented by the
group (either in a single operation or generally, in other operations as well) is not
only relevant to the operations of the National Police of Colombia but also to
other law enforcement officials who operate in a gray area against non-state armed
actors. An answer to this question shall not be provided in this thesis. The risk of
generalizing the findings of this thesis should not be underestimated. Other state
actors (in Colombia or other contexts) can take the findings into consideration
by comparing how far their operations (and the context in which they operate) are
similar to the ones that were assessed here, in particular, regarding the emphasized
elements and particularities of the scenarios.
B. Further Conclusions
The research question posed several other questions that were answered in this thesis.
First, the term “direct participation in hostilities” was analyzed, taking into
consideration the findings of a group of experts. It was concluded that it seems
C. Thesis Statement 167
possible to elaborate a definition of the term “direct participation in hostilities,”

despite the doubts expressed by the group. Accordingly, an individual participates
directly in hostilities by committing a specific act that is specifically designed to
support a party to an armed conflict and to the detriment of another party, and that is
likely to cause direct harm to the military operations or military capacity of the
other party, or, alternatively, to inflict death, injury or destruction on persons or
objects not under the effective control of the acting individual.
Second, the need to restrict IHL’s strong presumption that it is necessary to
resort to lethal force when targeting members of organized armed groups and/or
civilians was agreed upon. This kind of restriction is provided by the safeguard of a
person hors de combat. Namely, in the category “to be in the power of the adverse
party,” any objective criterion suffices that allows the operating forces to recognize
the person as one who will discontinue his/her participation in hostilities, i.e. no
longer defend him/herself or resist. Only the kind and degree of force that is
indispensable to maintain the attacked individual hors de combat with the minimum
expenditure of time, life and physical resources is allowed. The operating forces
must not be exposed to any additional risk, due to an unclear situation, or because
they use a lesser degree of force.
Third, in human rights law, it could be disclosed that the term “arbitrary” has the
same meaning in the International Covenant on Civil and Political Rights and the
American Convention on Human Rights. Already during the drafting process of
Article 4 ACHR, it was attempted that “arbitrary” should use the same wording as
Article 6 ICCPR. Subsequently, for the use of lethal force, legitimate purpose and
absolute necessity are, inter alia, required under both treaties.
C. Thesis Statement
1. In international law, namely IHL, the police are obliged to do everything

feasible to verify that their targets are military objectives. If the target is a
military objective, the operation conducted against the target is regulated by
IHL. Otherwise, the operation is regulated by the international law of human
rights. Hence, the rule implies that the police must do everything feasible
to correctly classify their operation as one of hostilities in IHL, or of law
enforcement in human rights.
2. If the police disclose that the targeted person is a civilian, the operation is
regulated by human rights. If the police, however, recognize that the person
directly participates in hostilities, the operation is regulated by IHL. This
requires that the person not merely be suspected of doing so, but that there
must be sufficient indications of his/her direct participation. In a case of doubt,
it is presumed by IHL that a civilian enjoys full protection as a civilian. This
rule leads to human rights regulating the operation.
3. If the targeted person can neither be identified as a civilian nor a non-civilian,
i.e. a member of an organized armed group, there is no rule of presumption in
168 5 Main Findings and Thesis Statement
IHL that pertains to non-international armed conflict. In Article 50.1 AP I, the

person should be considered a civilian in the case of doubt. However, the rule is
not of a customary character for a non-international armed conflict.
4. If the police, despite all feasible efforts, cannot identify the targeted person as a
non-civilian or civilian (or the targeted group as either a party to the conflict
or one under common law), the operation cannot be classified as one of IHL
or human rights. Apparently, it becomes complicated to know whether the
attacked individuals may be killed. However, the different requirements of
both branches relate to a high-intensity of violence at different stages.
l Foremost, if the attacked individuals respond with firearms, it can be
indicated that the police may use lethal force if absolutely necessary.
l If the attacked individuals flee without shooting at the police, the police can
resort to lethal force if there are no other (non-lethal) means to stop them, and
if they will behave violently in other situations, namely will cause risk to life
or limb.
l If the police forces decide to conduct an operation with a limited number of
law-enforcement officials, a limited set-up may not lead to an escalation of

violence (and the need to kill) – it must be expected (due to previous
experiences) that the group will react in a similarly aggressive way, despite
a large number of law-enforcement officials.
l If the violent behaviour of the attacked individuals ceases during the
operation (they do not continue to use firearms and do not attempt to escape),
it can be indicated that they must not be killed.
l If a targeted individual can be arrested at an earlier moment, however, at a
later stage, lethal force would be necessary, as a matter of human rights, the
person has to be arrested at that earlier moment. This is not required by IHL,
however operating forces can decide, for policy reasons, not to kill but to take
advantage of the moment when he/she can be arrested.
5. The analyzed similarities may not lead to the conclusion that the differentiation
between IHL and human rights law does not matter. This would be a
misconception. First of all, classifying the operations in the respective branch
of international law is a legal mater. Moreover, it is a question of economy to
apply the respective norms. If one has already concluded that IHL pertains to a
certain group, it is easier to assess the operation with regard to potential lethal
force, due to the presumption that this is strongly necessary. In the case that
human rights governs the operation, the requirements are well defined and
should therefore be assessed. Hence, despite the detected similarities, one
should not be tempted to intermingle the two branches of law. The Inter-
American Court on Human Rights decided not to apply IHL directly in
situations of killing during hostilities due to a lack of competence. Instead, it
applies the American Convention on Human Rights directly. However, the court
interprets the convention in light of IHL in order to avoid any intermingling
of the two branches of international law. This approach should be recognized
as admirable.
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especializada]
Abbreviations
ACHR American Convention on Human Rights

AP Additional Protocol to the Geneva Conventions
AUC Autodefensas Unidas de Colombia
CCW Convention on Prohibitions and Restrictions on the Use of
Certain Conventional Weapons
CDDH Conference Diplomatique du Droit Humanitaire
COPES Comando de Operaciones Especiales
DIH Derecho internacional humanitario (Spanish for IHL)
ECHR European Convention on Human Rights
ECtHR European Court on Human Rights
ELN Ejército de Liberación Nacional
EMCAR Escuadrones Móviles de Carabineros
FARC-EP Fuerzas Armadas Revolucionarias de Colombia – Ejército
del Pueblo
FN Footnote
GC Geneva Convention
IACiHR Inter-American Commission on Human Rights
IACtHR Inter-American Court on Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICG International Crisis Group
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IHL International Humanitarian Law
IIHL International Institute for Humanitarian Law
ILC International Law Commission of the United Nations
MAPP Misión de Apoyo al Proceso de Paz en Colombia
NATO North Atlantic Treaty Organization
OAS Organization of American States
OR Original Records
183
184 Abbreviations
UN HR-Commission United Nations Human Rights Commission

UNGA United Nations General Assembly
UNHCHR United Nations High Commissioner for Human Rights
UNHCR United Nations High Commissioner for Refugees
UNHRC United Nations Human Rights Committee
UNSC United Nations Security Council
UNTS United Nations Treaty Series
USA United States of America

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Killing in a Gray Area

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I would like to thank my relatives, friends and colleagues who encouraged me to

2 The Situation in Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3 Legal Requirements for the Use of Lethal Force . . . . . . . . . . . . . . . . . . . . . . 29

4 Use of Lethal Force by the National Police of Colombia

5 Main Findings and Thesis Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

2 The Situation in Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. Non-State Parties to the Colombian Armed Conflict . . . . . . 17

3 Legal Requirements for the Use of Lethal Force . . . . . . . . . . . . . . . . . . . . . . 29

(6) The Proviso regarding the Safeguard . . . . . . . . . . . . . . 85

VIII. Precaution, Control and Organisation of the Operation . . . . . 110

4 Use of Lethal Force by the National Police of Colombia

a) Legal Framework that Regulates Scenario Two . . . . . . 131

(1) Defencelessness Because of Unconsciousness,

3. Attack with a Very Limited Set-Up . . . . . . . . . . . . . . . . . . . . . . 159

5 Main Findings and Thesis Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Other Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Abstract Armed forces operating in particular in a non-international armed

A. Content and Questions Addressed

I. Killing: A General Problem in International Law and Its

In 2000, the Israeli government officially admitted to following a policy of killing

II. Legal Framework

B. Justification of the Research Topic

C. Questions That Are not Addressed

As the thesis relates to the situation in Colombia, it is necessary to analyze whether

Abstract In Colombia, there is an armed conflict not of international character

A. Armed Conflict not of International Character:

It is often said that there is a non-international armed conflict in Colombia.1 IHL

considered international, according to Article 2 Geneva Convention of 12 August

Article 3 GC I–IV requires “armed conflict not of an international character

The term “non-international armed conflict,” according to Article 3 GC I–IV, has

2. Party to the Conflict: Groups of Organized Crime and Banditry

The applicability of Article 3 GC I–IV is related to the parties to the conflict.

It is generally held that Article 3 GC I–IV requires a degree of organization on the

(2) Ability to Implement IHL

c) Are the Armed Groups Required to Have a Political Goal?

The ICRC Commentary on AP II holds:

This statement is given in order to describe a typical situation of non-international

d) Can Parties to the Conflict Commit Acts of Terrorism?

(1) View of the US Government

(2) Echoing the US Government’s View

3. Non-State Parties to the Colombian Armed Conflict

Various guerrilla groups operate in Colombia. The Fuerzas Armadas Revolucionarias

Traditionally, the paramilitary groups were organized on a regional level. It was

c) Organized Criminal Groups, Namely Drug Smugglers

II. Criteria under Article 1 AP II

Simultaneously to the provisions under Article 3 GC I–IV, AP II might be

1. The Responsible Command

The existence of a responsible command implies some degree of organization of the

2. Control Over Part of a Territory

It is not specified if relatively weak control of a territory is sufficient, or if it must be

3. The Sustained and Concerted Character of Military Operations

4. Military Operations Against Governmental Armed Forces

5. The Ability to Implement the Protocol

In Colombia, there is an armed conflict not of international character according to

B. The Term “Armed Forces” in IHL and the National Police of

In the previous section, it was concluded that there is a non-international armed