91
Carrying out said obligations is significant in the instant case, insofar as the
massacre was committed in a situation in which civilians were unprotected in a noninternational domestic armed conflict. In this regard, the Constitutional Court of
Colombia has deemed that
Article 4 of [Protocol II] not only orders general protection of non-combatants but also,
developing Article 3 common of the 1949 Geneva Conventions, embodies a series of
absolute prohibitions, which may be considered the essential nucleus of the guarantees
provided by international humanitarian law. […]
[the principle of] differentiating between the combatant and non-combatant population
has basic consequences. Thus, first of all, as the immunity rule of Article 13 [of Protocol
II] sets forth, the parties have the general obligation to protect the civilian population
against the dangers caused by military operations. Therefore, as paragraph 2 of this
article states, this population, as such, cannot suffer military attack, and acts or threats
of violence whose main aim is to terrorize it are forbidden. Also, this general protection
of the civilian population against the dangers of war also means that it is not in
accordance with international humanitarian law for one of the parties to involve this
population in the armed conflict, since in this way it becomes an actor in that conflict,
which would expose it to military attacks by the other party. […] Whatever the legal
status of normalcy or of a politically abnormal situation, civil society that is a victim of
armed confrontation must be protected by the State.196
115. The obligations derived from said international provisions must be taken into
account, according to Article 29.b) of the Convention, because those who are
protected by said treaty do not, for that reason, lose the rights they have pursuant
to the legislation of the State under whose jurisdiction they are; instead, those rights
complement each other or become integrated to specify their scope or their content.
While it is clear that this Court cannot attribute international responsibility under
International Humanitarian Law, as such,197 said provisions are useful to interpret
the Convention,198 in the process of establishing the responsibility of the State and
other aspects of the violations alleged in the instant case. These provisions were in
force for Colombia at the time of the facts, as international treaty agreements to
which the State is a party,199 and as domestic law,200 and the Constitutional Court of
Colombia has declared them to be jus cogens provisions, which are part of the
Colombian “constitutional block” and are mandatory for the States and for all armed
State and non-State actors involved in an armed conflict.201
116. In the instant case, the acts committed by the group of paramilitary against
the victims are part of the facts acknowledged by the State, since they are included
in section B of Chapter VI of the application filed by the Commission (supra paras.
34, 37 and 96.29 to 96.47), that is:
196
See judgment C-225/95 of May 18, 1995, issued by the Constitutional Court, paras. 35 and 30.
197
See Case of the Serrano Cruz Sisters. Preliminary Objections, supra note 181, para. 108, and
Case of Las Palmeras. Preliminary Objections. Judgment of February 4, 2000. Series C no. 67, para. 33.
198
See Case of the Serrano Cruz Sisters. Preliminary Objections, supra note 181, para. 119; Case of
Las Palmeras. Preliminary Objections. Judgment of February 4, 2000. Series C No. 67, paras. 32 to 34,
and Case of Bámaca Velásquez. Judgment of November 25, 2000. Series C No. 70, paras. 208 to 209.
199
Protocol II was ratified by Colombia on August 14,1995 and entered into force on February 14,
1996.
200
Law 171 of December 16, 1994, adopting the “Protocol additional to the Geneva Conventions of
August 12, 1949, regarding protection of the victims of non-international armed conflicts (Protocol II)".
201
See judgment C-225/95 of May 18, 1995, issued by the Constitutional Court.
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