because it has already established the responsibility of the State. In a judgment of May 20, 2004, the Arauca Contentious Administrative Court declared the Colombian State administratively responsible for the facts. The indictment on which the decision was founded was entitled “service failure”: Thus the responsibility of the Colombian Air Force has been fully established in the facts for which reparation of the damage caused is claimed, as the Colombian Air Force Inspectorate General itself affirmed when conducting a preliminary inquiry. The authorities are established to protect, inter alia, the life and property of the individual, and are legitimized to use force and weapons to combat those who attack the legally constituted system and society; but, during the conflict, it is necessary to make a distinction between combatants and non-combatants. The fact of firing from a Colombian Air Force helicopter indiscriminately against a civilian target, near which were civilians who were not participants in the conflict, signified that one of the State’s agents ignored the State’s obligations, thus resulting in a service failure, which entailed the State’s patrimonial responsibility and, necessarily, this must be declared. […].245 169. In a judgment of November 19, 2008, Section Three of the Council of State approved the conciliatory agreements reached between the presumed victims and the Ministry of Defense and also ruled on four of the claims in which an agreement was not approved.246 170. In this regard, it should be observed that the State indicated in its answering brief that the conciliation promoted in second instance prevented the Council of State from ruling on the indictment, “but in the discussions at the administrative level to authorize the judicial conciliation (within the Ministry of Defense’s conciliation committee), it was always clear that the conciliation was based on the theory of special damage and not subjective responsibility.” Thus, it argued that the reparations and the acknowledgement made by the State in the conciliatory agreement “must be interpreted in the context of the possible responsibility of the administration for special damage,” according to which the State may repair damage caused by its valid and legitimate actions, so that the illegality of the actions carried out by the Colombian Air Force was not admitted, and neither does this equate to the international responsibility of the State under the Convention. In addition, the State “declare[d] that it respects and abides by the decisions adopted by domestic justice, but in relation to this specific case it considers that the actual assessment of the evidence shows that […] the State acted legitimately and opportunely, in full exercise of its constitutional and legal competence [and, t]herefore, the service failure declared by domestic justice as grounds for the State’s administrative responsibility is inexistent.” Nevertheless, the Court observes that this argument of the State is not supported by what was declared in the above-mentioned decisions of the contentious administrative courts.247 245 Judgment of May 20, 2004 el Contentious Administrative Court of Arauca. Action for Direct Reparation (evidence file, tome 20, folios 10233 and 10234). 246 “As can be seen, in this case it was proved that the Nation had incurred in a service failure by firing on civilians during the pursuit of a clandestine aircraft that presumably carried out drug-trafficking labors, a conduct that is culpable in light of constitutional and international principles. Consequently, when declaring the State’s financial responsibility not only is reparation made for the damage caused to the victims, but also the protection of fundamental rights is ensured, so that the events prosecuted are not repeated.” Cf. Judgment of November 19, 2008, Section Three, Council of State, Mario Galvis Gelves et al., case file No 07001-23-31-0002000-0348-01, Councilor Rapporteur: Ramiro Saavedra Becerra (evidence file, tome 3, folios 1080 to 1081). 247 The Arauca Contentious Court considered: “Can the premise of special damage be established in this case? The Chamber considers that it cannot, because although, initially, the National Army and the Air Force were conducting a legitimate action by pursuing a clandestine aircraft dedicated to drug-trafficking as well as combating members of the guerrilla that were waiting for it and protecting it, this legitimate and obligatory action for the Armed Forces became blurred when the helicopter FAG 4407 fired on civilians with criminal intent, as it was referred to in the order issued to investigate the members of the Armed Forces. In other words, not even a wrongful act can be established, because at least the captain of the aircraft was aware of the place towards which the launch was directed. […] Thus there was a fault of the Administration, and this fault was duly proved during the proceedings; consequently, the indictment can be founded on this regime as the petitioner claims without this having any other relevance for the effects of the calculation of the sentence, because the fact that the deaths and injuries were caused by official weapons also supports the indictment, freeing the petitioner from certain probative aspects since the exercise of dangerous activities is involved.” Judgment of May 20, 2004, of the Contentious Administrative Court of Arauca. Action for Direct Reparation (evidence file, tome 20, folios 10233 and 10234). ‐ 51 ‐