The facts of Macro Case 01Footnote ⁴

Macro Case 01 accumulated thousands of kidnappings under domestic law and identified three patterns of kidnappings pursuant to FARC-EP leadership orders. The first pattern was kidnappings for ransom to finance the guerrillas, which the JEP identified as the war crime of hostage-taking in a straightforward application of international law. The second pattern of kidnappings was identified as part of a larger attack on civilians for a diversity of reasons, mostly to punish people who resisted FARC-EP rule. Although the defendants argued that some of these cases followed “security” concerns, they did not argue that the actions were lawful or followed due process consideration, so the judicial panel did not consider whether the FARC-EP did in these cases have the authority to detain civilians. Thirdly, the JEP examined a pattern of detention of civilians and persons hors de combat who were held in order to force an exchange for imprisoned guerrillas, and who were described as “prisoners of war” by the FARC-EP. The following discussion will be limited to this latter pattern, where the judicial panel did address the issues raised in this article.

The description of these detentions as hostage-taking followed a 1997 decision by the FARC-EP leadership. In a special meeting pre-dating the initiation of peace talks in 1998, the leadership decided that the FARC-EP would no longer free enemy combatants once they no longer provided a military advantage, but would instead keep them in order to force an exchange for guerrillas being held in national jails.

The decision was announced in 1998, as the FARC-EP opened another round of peace negotiations with the Colombian government. The FARC-EP had grown exponentially in the 1990s, gaining the capacity to control territory and confront the Colombian armed forces in open battle, abandoning guerrilla tactics for full-on confrontation on the field. In 1993 the group adopted a strategic plan that entailed encircling major Colombian cities, cutting off land communication and forcing, in their view, a general uprising against the government, which would then be replaced by a revolutionary government.

In 1998, the newly elected government of Andrés Pastrana Arango (1998–2002) and the FARC-EP began a new round of peace talks that would last until 2002. It was then that the FARC-EP brought up the issue of captured armed forces and police as prisoners of war, demanding an exchange. The government refused any measure that could be deemed a prisoner exchange but agreed to a “simultaneous liberation” of imprisoned guerrillas and the police and armed forces detained by the FARC-EP. In 2001 the government and the FARC-EP signed an agreement to this effect; the FARC-EP subsequently liberated 271 soldiers and policemen, while the government freed eleven imprisoned members of the guerrilla group.

The FARC-EP leadership then doubled down on its commitment to pursuing a prisoner exchange. It brought forth, as a condition to continuing negotiations, a proposal for a statute regulating prisoner exchange between the State and guerrillas, the Exchange Law (Ley de Canje). It kept all police and armed forces officers in custody, in makeshift camps deep in the jungle. As the Exchange Law failed and peace negotiations inched forward, the FARC-EP commander for the Eastern Bloc announced in a television interview that the group would now detain civilians in order to exert pressure for prisoner exchanges. The group then proceeded to kidnap civilians that it considered to be high-profile political figures whose detention would force acceptance of prisoner exchange, including an acting governor, a former governor, twelve state assemblymen, a presidential and a vice-presidential candidate, three congressmen and a former chancellor. Three US military contractors shot down as they flew over the jungle were also detained. Most of the detainees were imprisoned in the same camps as the police and armed forces officers, while others were kept in isolated camps.

Peace talks failed in 2002 when the FARC-EP brought down a plane in mid-flight, landed it on a road and kidnapped a senator who was also president of the congressional peace delegation. President Pastrana declared the peace talks terminated, and the Army began a large-scale operation to confront and eliminate the guerrillas, using both a renovated military with sophisticated counter-insurgency operations and aerial bombings with US intelligence support. This successful campaign stretched on for the next eight years under President Alvaro Uribe (2002–2010) and received great popular support, fanned by a generalized rejection of guerrilla methods – notably kidnapping, with images of detained civilians and officers becoming a symbol of guerrilla cruelty. Military pressure persisted as the guerrillas negotiated a peace agreement with President Juan Manuel Santos (2010–2018).

The detainees became a burden for the FARC-EP as they had to be moved through inhospitable geography, dodging bombs and military operations. The camps became more and more makeshift, and supplies more and more scarce, including food and medication. The detainees were left in the hands of guards who were equally trapped, enduring harsh conditions and the threat of attack as they supervised the frequently ailing detainees with no formal training in guarding prisoners, and little oversight.

A few detainees escaped, some were killed, some were rescued, and others died from diseases or were shot by their captors. One of the female hostages had a child while in the camps, and the child was handed by the guerrillas to a peasant family to raise. The Army attempted numerous rescue operations over the years, some of which succeeded; others failed and resulted in the execution of the hostages. In one instance the guards, believing they had been surrounded by the Army, shot and killed eleven civilian hostages by mistake. Most of the victims were eventually released, after painstaking negotiation by third-party mediators including the ICRC, the Catholic Church, Colombian civil society and President Chavez of Venezuela.

Survivors wrote harrowing accounts of the conditions of captivity, shared by both civilian and military detainees. Firstly, while clearly the guard could not kill them without authorization, there was little if any supervision or control over the conditions of captivity. Victims were frequently kept chained, both to keep them from escaping and as form of humiliation and punishment, sometimes with heavy padlocks around their necks, chained to each other even as they marched from one camp to the next. Guards shouted at them, humiliated them, enacted mock executions, and withheld food and medicines as a form of punishment. The detainees were fiercely guarded at all times, even as they defecated in open latrines, both men and women. They were sometimes beaten for various offences. As the Army bore down on the guerrillas and bombed their camps, the detainees were forced to march long distances without adequate equipment – even those who had medical or age-related conditions that made those marches particularly harrowing. Food was sometimes scarce and usually inadequate, as were medications, and the jungle conditions left the detainees vulnerable to tropical diseases such as yellow fever, dengue and leishmaniasis. Some spent over a decade in these conditions, as the years dragged on without exchange ever being accepted by any government.

Negotiations with President Santos resulted in a peace agreement that was initially rejected by the majority of Colombian voters but was renegotiated and approved by Congress in 2016. Its provisions contemplated a constitutional reform and the creation of the JEP to try those most responsible for international crimes during the armed conflict. The JEP's first case was Macro Case 01.

The JEP's decisions in Macro Case 01: When is detention by an NSAG hostage-taking?

While Macro Case 01 examined different types of detention by the FARC-EP, as mentioned above, this article focuses on detention of persons hors de combat and civilians for the purposes of a future exchange with imprisoned guerrillas. While for the government this was kidnapping, the FARC-EP argued that the detainees were in fact prisoners of war and that their detention was allowed under international law, especially given the humanitarian end, which was a prisoner exchange. The issue was first examined by the judicial panel, the Panel for the Recognition of Truth, Responsibility and the Determination of Facts and Conducts (Sala para el Reconocimiento de Verdad, de Resposabilidad y de Determinación de los Hechos y Conductas, SRVR), which was charged with deciding whether these detentions could be sent for amnesty proceedings, as pertaining to crimes that were neither war crimes nor crimes against humanity, or whether the guerrilla commanders should be tried for these detentions, and if so, for which crime.

The SRVR differentiated between detentions of civilians and detentions of police and military personnel. It considered all detentions of civilians meant to force a prisoner exchange to be the war crime of hostage-taking and the crime against humanity of grave deprivations of liberty. In regard to enemy fighters, specifically police and military personnel, it distinguished between those detentions that resulted in liberations before 2001 and those which persisted after that date, considering the latter to be hostage-taking, as described by the Rome Statute of the International Criminal Court in Article 8(2)(iii). However, it did not specifically say that the detentions of police and soldiers before 2001 were licit. The SRVR also separately identified other crimes committed against detainees, including torture and cruel, degrading and inhuman treatment and punishment.

In examining whether the facts met with the specific requirements of an international crime, the SRVR established first that the hostages were in fact people who did not participate in the hostilities (civilian hostages) or were hors de combat (police and military personnel). The issue of civilians was not further examined, as there was no allegation that they presented a security threat or were participating in the hostilities, and the SRVR considered them to be hostages. Hence, the SRVR did not engage with the possibility that some of the detentions of civilians were licit, which they might arguably have been if the civilians posed a security threat to the NSAG. The Panel did argue that even if the police and military personnel were captured in combat and initially detained in order to obtain a military advantage, their detention ceased to be licit when this requirement was no longer met, which seems to imply that the Panel considered military advantage to be a requirement for the licit detention of soldiers and police. The decision did not further elaborate on this possibility, although it seems clear from the argument on the importance of the FARC-EP's 1997 decision to keep the officers and liberate foot soldiers and police.

The FARC-EP's 1997 decision, and the 2001 liberation of most detainees during peace talks, was the deciding factor for the SRVR. Detainees became hostages when the FARC-EP refused to liberate the officers and instead kept them captive – and further captured civilians – in order to force their exchange for imprisoned guerrillas, without any consideration of whether there was a military advantage in continuing the detention. In its indictment, the Panel concluded that from that moment on, the detainees became hostages as per the Rome Statute. The Panel's decision also documented mistreatment by the guards constituting the crimes of torture, cruel and inhuman treatment, sexual violence and murder, independently of whether the detention itself was in fact licit under international law.

The SRVR referred to the Special Court for Sierra Leone's (SCSL) Sesay decision when it signalled that the intent to condition life or freedom did not need to occur during the deprivation of liberty, but could be a later event, even when the detention itself was legal or not prohibited by international law.Footnote ⁵ In this case, regardless of the intention when the military personnel were captured, even if it was for an eventual prisoner exchange in addition to reducing the Army's military capacity, this intention was transformed into the intent to keep them hostages after the 2001 liberation, when the sole reason to maintain them in captivity was to force an exchange for imprisoned guerrilla fighters.

Following JEP procedure, the defendants, while accepting the charges pertaining to the facts and individual responsibilities, objected to the description of the detention of police and military personnel as hostage-taking.Footnote ⁶ While accepting the facts as described by the Panel, they argued that detention of combatants must be amnestied pursuant to Article 23 of Law 1820 of 2016 as well as IHL, and that the Geneva Conventions contemplate administrative and judicial detention in case of military advantage and security concerns, both for combatants and for civilians who participate in the hostilities, including the police. The defendants also argued that detention is not per se prohibited by Article 3 common to the four Geneva Conventions (common Article 3), and that Article 5 of Additional Protocol II (AP II)Footnote ⁷ includes the possibility of internment or detention in NIAC. Further, they signalled the policy interest in lawful detention in NIAC to preserve lives, and argued that the SRVR should have sent these conducts to amnesty proceedings, considering that military personnel had been detained both to gain a military advantage and to preserve their life, rendering their detention licit as per IHL and therefore not an international crime. Additionally, they claimed that it was the Colombian government of the time who had eschewed humanitarian concerns by refusing to agree to an exchange, and cited 2004 United Nations recommendations that the government agree to this exchange. The defendants did not, however, address the SRVR's specific concerns as to the leadership's 1997 decision and the partial liberation of 2001 during peace talks.

In its response to these arguments, the SRVR further clarified its position, and its understanding of the circumstances that rendered detention of persons hors de combat by an NSAG the crime of hostage-taking.

First, the SRVR underlined that in this case it was not making a distinction between members of the armed forces and the police, since the detained police members had in fact participated in hostilities. Second, the Panel reiterated its argument that once detention was no longer motivated by security concerns, or by an interest in weakening the enemy, and it became solely motivated by the demand that the government agree to free imprisoned guerrillas, it was in fact hostage-taking. The Panel reiterated the reference to the SCSL's Sesay decision to indicate that while the detention itself might initially have been motivated by security concerns, over time the intention had formed to keep the detainees as hostages.

The SRVR also clarified the presence of the elements of hostage-taking, both the intent to force a third party to do something and the threat to life and well-being. It pointed out the fact that the hostages’ liberation was conditioned on the government freeing imprisoned guerrillas as evidence of the existence of a condition. It also pointed to an absence of credible arguments or evidence that the detainees posed a military threat or that their continued detention was carried out with FARC-EP security in mind. Moreover, it underlined the harrowing conditions of detention as evidence that the hostages’ lives and well-being were threatened.

The Panel did not further address the absence of a specific authorization in NIAC for detention by NSAGs, and cited no specific rules beyond those that mandate humanitarian treatment in common Article 3 and AP II. The Panel did, however, reiterate that it understood that detentions for security reasons, or for military advantage, were not in themselves the crime of hostage-taking, and that the other elements – namely, the intent to force a third party to do something and the threat to life and security – had to be clearly proven.Footnote ⁸

The SRVR then explained that it was not defining all detention by the FARC-EP as hostage-taking, but rather detentions carried out after 1998, when the FARC-EP liberated soldiers and police personnel but kept the officers hostage to the eventual liberation of guerrillas in prison. For the Panel, it was this decision that conditioned not only the detainees’ liberty to the actions of the government, but implicitly their life and integrity as well, given the extreme conditions of detention. This specific threat to life and integrity, the overt conditioning of the detainees’ liberation to the liberation of imprisoned guerrillas, and the lack of military advantage in continued detention rendered detention the crime of hostage-taking. The Panel further elaborated on how after peace talks ended, conditions of detention were in themselves a threat to the life and integrity of the detainees:

The SRVR's decision was upheld by the Peace Tribunal's Chamber for Recognition, but the Chamber, while ratifying the SRVR decision, did not engage with the possibility that detentions were licit before 2001.Footnote ¹⁰ An appeal is currently pending.

The relevance of the JEP's decision for IHL

IHL barely provides initial conditions for lawful detention by an NSAG. At a minimum, these conditions would be those of the applicability of common Article 3 and AP II, given that those are the conventional sources of IHL obligations in NIAC, as well as the basis of applicable customary IHL. Therefore, lawful detention by an NSAG only occurs in armed conflict, following the definition of armed conflict for NIAC, including that of the threshold of violence. The applicability of AP II further requires that it “not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”.Footnote ¹¹

Additionally, IHL rules regulate conditions of detention both of civilians and of persons hors de combat, on the matter of the treatment of detainees and of due process guarantees. These rules on treatment of detainees apply to all parties to a NIAC explicitly and implicitly, as regulated by common Article 3 and by AP II, as well as by Rules 99 and 128 of the ICRC Customary Law Study.Footnote ¹² Interpreted together, these rules prescribe humane treatment for all detainees, the collection and care of the wounded and sick, and basic due process rights for detainees of both States and NSAGs.

However, the fact that detention is regulated does not mean that the detention is lawful. Commentators agree that there is no blanket prohibition of detention by NSAGs, but most also argue that these rules do not clearly say when detention by NSAGs is lawful or imply that it is always lawful as long as there a NIAC. States are bound to certain requirements for lawful detention in NIAC, including the guarantee of IHRL, but these are not clearly applicable to NSAGs, beyond humane treatment and minimal due process guarantees.Footnote ¹³ This leads to the question of when detention by NSAGs is lawful.

This question cannot be resolved by claiming that the NSAG provided humane treatment, as the obligation to provide humane treatment is independent of whether the detention is lawful. Humane treatment is premised on common Article 3's prohibition against discrimination and its proscription of “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”; taking of hostages; “outrages upon personal dignity”; and “humiliating and degrading treatment”. Common Article 3 also provides the mandate to care for the sick and wounded, and a basic prohibition against execution or punishment without the judgment of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. Humane treatment is further mandated by AP II more generally, as well as by customary IHL: Rules 87 to 93 of the ICRC Customary Law Study set out specific rules of humane treatment for detainees, while Rule 128 mandates liberation as soon as conditions justifying the detention cease to exist.

As to basic due process guarantees, while arbitrary detention is prohibited both in IHL and IHRL, IHL rules are different to those of IHRL. In IHL, beyond the general condition of the existence of an armed conflict, the grounds of detention must provide a relationship to military necessity, such as removing persons hors de combat from hostilities or detaining civilians who pose security threats.Footnote ¹⁴ This was the issue considered by the JEP when it responded to the defendants’ claim that the detainees were in fact a security threat.

The JEP did not, however, address the prohibition of arbitrary detention or whether the actions in question did in fact constitute arbitrary detention. Rule 99 of the ICRC Customary Law Study states that “arbitrary detention is prohibited”, without a specific definition of “arbitrary”. The ICRC, in its most recent report of 2023 on detention by NSAGs (which also presents rules that adapt IHL to NSAGs in NIAC), specifies that lawful detention requires a law specifically authorizing it, and an effective review process. The ICRC suggests that this can even be an ex-post law or regulation adopted by an NSAG after detention, but there must be some type of regulation.Footnote ¹⁵

However, this remains a contentious issue that is avoided by the JEP. There is in fact a debate among IHL scholars on whether requirements for lawful detention might be different for NSAGs than for States. The ICRC instruction seems to be addressed at parties with the capacity to adopt laws that regulate detention (i.e., NSAGs that are in some way State-like entities), denying that possibility to NSAGs which do not have that capacity, even if they are parties to an internal armed conflict.Footnote ¹⁶ Casalin argues that NSAGs have similar IHRL obligations to States, a claim that is also supported by the inter-American human rights system, which has insisted that IHRL binds all parties to conflict equally.Footnote ¹⁷ For Sassóli, however, there should be a “sliding scale” application of IHL that considers whether NSAGs are able to comply with rules that were initially set out for States, with the prohibition against “arbitrary” detention as an example of an unrealistic requirement. Mégret takes a different approach, arguing that since IHL does not solve the problem, the issue falls to IHRL, and hence licit detention in NIAC is limited to NSAGs that can bear IHRL duties with a right equated to statehood.Footnote ¹⁸

This debate also impacts liability for international crimes, and therefore the IHL mandate to grant amnesties.Footnote ¹⁹ Authorization to detain precludes liability, since the detention would itself be legal, at least under certain circumstances. If authorization requires the NSAG to have and follow its own internal rules for detention not to be arbitrary, as provided for in the ICRC's 2023 report, then most NSAG detention would probably be arbitrary and potentially criminal, given that, like the FARC-EP, most NSAGs do not in fact ensure due process guarantees for detainees in theory or in practice.

Instead of addressing this problem, the SRVR focused on the defendants’ argument that the detention of civilians and persons hors de combat for the purposes of an eventual prisoner exchange was in fact lawful given its own internal understanding of the detainees’ status as “prisoners of war” and the “humanitarian intent” of carrying out an exchange of prisoners. This was understood differently by the SRVR. The Panel considered that the detentions were in fact hostage-taking, applying the Rome Statute's definition of hostage-taking as an illicit detention with the intention of forcing a third party to act or abstain from acting as the explicit or implicit condition for the preservation of the hostage's life and physical integrity.Footnote ²⁰ In this sense, the SRVR is aligned with the ICRC's 2023 report when it says that “[h]olding a person solely to extract money, for demanding prisoner concessions or for the sole purpose of exchanging that person against a detainee held by the adversary likely amounts to hostage taking and is prohibited under IHL”.Footnote ²¹ For the JEP, this is a certainty, not a likelihood.