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temporarily separated…” According to the International Committee of the Red
Cross, this obligation has been defined as that “the parties to the conflict must do
everything in their power to reestablish family ties, that is, not only allow the
searches undertaken by the members of the families separated, but also facilitate
them.” (paragraph 191 of the referred judgment.)
From the context described in the judgment, as well as from the considerations
made in other sections, it is clear that during the hostilities of the internal armed
conflict and specifically in the case of the Las Dos Erres Massacre, the State of
Guatemala did not observe the different universally accepted principles and
customs.
According to the principle of distinction, “the civil population and civilian persons
will enjoy general protection against dangers from military operations.” This general
protection enjoyed by the civil population derives from custom and from general
principles; however, beginning with common Article 3 of the Geneva Conventions of
1949 and especially from Additional Protocol II to the Geneva Conventions, it is on
record in the substantive law text. In other words, while the first (combatants) are,
by excellence, the object of the war, the others should not be implicated in the
hostilities. This rule of international custom emphatically recognizes that the parties
to the conflict will, at all times, make the distinction between civilians and
combatants.
On the other hand, according to the principle of proportionality, in every
internal or international armed conflict, attacks should be strictly limited to the
military objectives. Civil property should not be the object of attacks or retaliations.
And, lastly, according to the principle of prohibition on causing superfluous or
unnecessary suffering, any combatant and all parties to a conflict are prohibited
from using arms and methods of war that could cause useless losses or
unnecessary or excessive suffering. In this sense, indiscriminate attacks are
prohibited.
All of these principles constitute humanitarian duties that all of the States must
fulfill, since in International Humanitarian Law, the principles represent the
minimum humanity applicable at all times, in all places and in all circumstances,
even valid for States that are not part of the Conventions or Protocols, since they
express the communities’ customs.
Regarding the Geneva Conventions, it is important to indicate that they were
ratified by the State of Guatemala on May 14, 1952. As part of these agreements,
common Article 3 constitutes a system for the protection of the victims of internal
armed conflicts and the minimum protection that must be given to human beings at
all times and places during armed conflicts that are not of an international nature.
As expressed by the Appeals Chamber of the International Criminal Tribunal for the
former Yugoslavia in the judgment of February 20, 2001, “the entire world
recognizes that the acts mentioned in common Article 3 are criminal and go against
the conscience of any civilized group.” In conclusion, the State of Guatemala has
the obligation to investigate the facts and determine if there were any violations of
common Article 3 of the Geneva Conventions and identify those responsible.
It is worth noting that the consideration of the Inter-American Court of Human
Rights in paragraph 131 of this judgment, when referring to an investigation
without delay of the multiple crimes perpetrated during the events of the massacre,
must be understood as including the investigation of those events considered
crimes of war and other prohibitions by International Humanitarian Law, so as to
prosecute and punish those responsible for these acts. It would have been
desirable, however, for the judgment to concretely indicate that the State of
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