5
responsible for violation of the right to life of the 17 people, including six children, who died at
allegedly as a result of the actions of the FAC.
21.
In that connection, the petitioners submit that the alleged launch of a cluster bomb
from a FAC helicopter constituted an indiscriminate attack against the civilian population. They say
that the above attack took place in a context of an armed conflict in Colombia in which the
standards of international humanitarian law and human rights obligations apply, particularly where
protection of the civilian population is concerned.
22.
The petitioners note that although the IACHR and the Inter-American Court do not
have contentious jurisdiction to enforce international treaties that are exogenous to the InterAmerican system, under Article 29 of the American Convention, such instruments may be used as a
source for interpreting the rights recognized in Convention so as to provide a greater scope of
protection for human rights. In that connection, the petitioners cite the Inter-American Court, which
has found,
While it is clear that this Court cannot attribute international responsibility under International
Humanitarian Law, as such, said provisions are useful to interpret the Convention, 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, and as domestic law,
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. 7
23.
Thus, the petitioners note that international humanitarian law, which is based on
common law and has been coded in the Geneva Conventions of August 12, 1949, and their
Additional Protocols of 1977, contributes to the interpretation of Article 4 of the American
Convention.
24.
In this context, the petitioners hold that persons who are not party to hostilities are
subject to special protection under common Article 3 of the 1949 Geneva Conventions and point
out that, while it has been maintained at the domestic level that allegedly there was no deliberate
intent on the part of the members of the Air Force to attack the civilian population and that,
therefore, they acted with negligence and their actions fell into the category of wanton disregard for
human life, that did not release the State from its responsibility for its failure to discharge its
international human rights obligations.
25.
The petitioners argue that the State violated the right to humane treatment protected
in Article 5 of the American Convention, in connection with Articles 19 and 1(1) thereof, to the
detriment of the 25 persons, including nine children, who were wounded allegedly as a result of the
actions of the FAC, as well as to the detriment of their next of kin and those of the 17 people who
were killed in the attack.
26.
With respect to Article 19 of the Convention, the petitioners hold that, as the InterAmerican Court has ruled,
The content and scope of Article 19 of the American Convention must be specified, in cases
such as the instant one, taking into account the pertinent provisions of the Convention on the
Rights of the Child, especially its Articles 6, 37, 38 and 39, and of Protocol II to the Geneva
7
The petitioners cite I/A Court H.R., Case of the “Mapiripán Massacre v. Colombia, Judgment of September 15,
2005, Series C No. 134, par. 115 (footnotes omitted).