B.3. The presumed machine gun attack 231. Regarding the presumed machine gun attack, as indicated above, there are two versions of the events. On the one hand, the State indicates that such actions against the civilian population did not occur and, on the other hand, the Commission and the representatives base themselves on the conclusions of the 12th Criminal Court and of the Superior Court of the Bogotá Judicial District,339 on the conversations of the pilots recorded together with the Skymaster images, and on the testimony of several inhabitants of Santo Domingo. 232. As indicated previously (supra paras. 71 and ff.), the Court notes that, from the evidence provided and from the arguments, that there are two versions of what happened. Thus, the State alleges that the Air Force did not machine gun the civilian population or the village of Santo Domingo. However, the testimony of several inhabitants of the village of Santo Domingo are consistent in stating that, following the explosion of the cluster bomb, the Colombian Air Force machine-gunned those who were fleeing from Santo Domingo by the highway towards Tame from the aircraft. In addition, the testimonies are congruent with the conversations of the aircraft pilots that took place as of 10:10:33 a.m., referring to the persons who moving on the road, and which were recorded in the Skymaster video, in which it can be heard: Skymaster (10:10:33 a.m.) “No, no, don’t fire, fuck, they’re civilians” (10:10:59 a.m.) ¿Are they civilians?” “Yes, those are civilians”; (10:11:02 a.m.) “Jesus Christ, they’re firing on civilians […] don’t shoot […],” (10:11:11 a.m.) “This motherfucker shot civilians,” (10:11:32 a.m.): “Don’t fire you fucker; (10:11:57 a.m.) But, can they be civilians. He’s going to shoot at civilians? (10:12:03 a.m.) You’ve got to speak to that guy; (10:12:04 a.m.) There are people on the highway, running, dressed in white; (10:17:04 am) They’re running away, they’ve almost reach the cattle pen. I think that these are villagers also; they’re civilians also who are fleeing.”340 233. The said testimony conclusions reached by the and 113). Furthermore, the their doubts about whether guerrilla.341 of the inhabitants of Santo Domingo is also consistent with the 12th Criminal Court and the Bogotá Superior Court (supra paras. 109 conversations among the aircraft pilots also reveal that they expressed the people who were on the highway were civilians or members of the 234. Regarding the principle of distinction between civilians and combatants, the Court recalls that, according to the norms of international humanitarian law indicated above (supra para. 212), conducts that constitute indiscriminate attacks are also prohibited “which employ a method or means of combat which cannot be limited as required by international humanitarian law […] and, consequently, […] are of a nature to strike military objectives and civilians or civilian objects without distinction.”342 Similarly, the case law of the International Criminal Tribunal for the Former Yugoslavia (hereinafter also “ICTY”) has indicated that “indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians,” and that these “are expressly prohibited by Additional 339 Cf. Superior Court of the Bogotá Judicial District, Criminal Chamber, Judgment of June 15, 2011, deciding the appeal filed against the First Instance Judgment, Reporting Judge: Luis Mariano Rodríguez Roa (evidence file, tome 16, folios 8414 and ff.; tome 19, 10717 and ff.). 340 Cf. Skymaster video of December 13, 1998, 10:17:04 a.m.; 10:12:03 a.m., and 10:11 a.m. (evidence file, tome 19, folio 9621). 341 See, for example, when one of the Skymaster pilots says to the other: “This is a job for the troops, because here we can’t tell the civilians from the guerrillas, because they’re not in uniform.” Skymaster video of December 13, 1998, 10:53:42 a.m. (evidence file, tome 19, folio 9621). 342 Henkaerts, Jean – Marie, Doswald – Beck Louise, Customary International humanitarian law, volume I, rules, ICRC, Cambridge, 2005, Rule 12. ‐ 69 ‐