9
The plaintiff also set out in its brief the nature of international humanitarian law and
its relation to human rights.
Lastly, the Commission invoked Article 25 of the American Convention. The
Commission interpreted this article in the sense that it was a norm that allowed it to
apply humanitarian law.
The Commission stated that, in its opinion, the objection filed by Colombia is not a
jurisdictional objection that can affect the elements required for the Court to exercise
its competence. It stated that it was perhaps premature to consider the State’s
objection with regard to the invocation of the Geneva Conventions, since this issue is
linked to the merits of the case. However, in the conclusion to its brief, the
Commission requested the Court to dismiss the preliminary objection filed and to
declare that it had competence to apply international humanitarian law and other
international treaties.
30.
During the public hearing, Colombia tried to refute the arguments set out by
the Commission in its brief. In this respect, the State emphasized the importance of
the principle of consent in international law. Without the consent of the State, the
Court may not apply the Geneva Conventions.
The State’s representative then affirmed that neither Article 25 or Article 27.1 of the
American Convention may be interpreted as norms that authorize the Court to apply
the Geneva Conventions.
Lastly, Colombia established the distinction between “interpretation” and
“application.”
The Court may interpret the Geneva Conventions and other
international treaties, but it may only apply the American Convention.
31.
At the hearing, the Commission made a detailed statement on its thesis about
the applicability of international humanitarian law by the Court, in which it stated
that “the premise that the Commission and the Court are required to determine
whether States Parties have violated the American Convention in a way that excludes
other sources of international law” is inexact.
The Commission affirmed in its arguments that there is a specific relationship
between Article 4 of the American Convention and Article 3 common to all the
Geneva Conventions, and that,
as it has understood […] the purpose and goal of the American Convention and the need
to apply it effectively uphold the competence of the organs of the system to decide on
violations of Article 4 in a way which is coextensive with the norm of general
international law embodied in Article 3 common to all the Geneva Conventions.
[...]
In view of its specificity and relevance for this precise case and its context, the
Commission deems that the common Article 3 was considered in its character of a norm
of international law that obliges the Illustrious State and that even forms an integral part
of Colombian domestic law. The Commission considers that ignoring the meaning and
scope of certain international obligations of the State and renouncing the task of
harmonizing them with the competence of the organs of the inter-American system in an
integral and teleological context, would imply betraying the ethical and juridical benefit
promoted in Article 29, which is to say the best and most progressive application of the
American Convention.