Protocol I [343] [and this] prohibition reflects a well-established rule of customary law applicable in
all armed conflicts.”344
235. In the instant case, the Court notes that, as can be heard in the recordings, the aircraft
pilots expressed doubts as to whether or not the people they were observing moving on the
highway towards Tame were civilians, and despite this they used their weapons (in this case
machine guns), in manifest lack of concern for the life and integrity of these persons, and in noncompliance with the principle of distinction (supra para. 212). In addition, even in the hypothesis
that there could be members of the guerrilla among the civilian population, the military advantage
sought would not have been so great that it could justify eventual civilian deaths and injuries, so
that, in that hypothesis, these actions would also have affected the principle of proportionality.
236. Lastly, the Court notes that the Colombian Air Force manuals and regulations in force at
December 13, 1998 (supra para. 220), established clearly that machine gun attacks could only be
used “in response to subversive attacks or seizure, when there is certainty that the civilian
population will not be affected, [and] may never be used in populated or semi-urban areas,”345 so
that the machine gun attack also breached the principle of precaution in attack.
237. The Court notes that this action by members of the Colombian Air Force entailed a failure to
comply with the obligation to guarantee the rights to life and personal integrity in the terms of the
American Convention of the inhabitants of Santo Domingo, who were affected by the
endangerment of their rights by the mere fact of having been the object of these indiscriminate
attacks, irrespective of whether anyone was killed or injured. However, the representatives and the
Commission did not individualize those who were the victims of these grave events, so that it is not
incumbent on the Court to make a separate ruling in this regard.
B.4.
The alleged violation of measures of protection in favor of the children
238. The Court has repeatedly stated that “both the American Convention and the United Nations
Convention on the Rights of the Child form part of a very comprehensive international corpus juris
for the protection of children that should serve […] to establish the content and scope of the
general provisions defined in Article 19 of the American Convention.”346 Furthermore, in the
context of non-international armed conflicts, the State’s obligations in favor of children are defined
in Article 4(3) of Protocol II additional to the Geneva Conventions, which stipulates that:
“[c]hildren shall be provided with the care and aid they require, and in particular: […]
(b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated
[…].347
239. It should be recalled that the Court has indicated that “the special vulnerability, owing to
their condition as children, is even more evident in a situation of internal armed conflict, […]
343
Article 50 of the 1977 Protocol I Additional to the 1949 Geneva Conventions (“Definition of civilians and civilian
population”) establishes that: “1. A civilian is any person who does not belong to one of the categories of persons referred
to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a
person is a civilian, that person shall be considered to be a civilian. […].”
344
ICTY, Case file: IT-96-29/1-T. “The Prosecutor v. Stanislav Galic.” Judgment of December 5, 2003. ICTY Trial
Chamber, para. 57.
345
Directive 057 of July 23, 1997, cited by the 12th Criminal Court of the Trial Circuit of Bogotá D.C. with functions
under Law 600 of 2000, First Instance Judgment, Case file 2005-102, September 24, 2009 (evidence file, tome 12, folio
6386).
346
Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, para. 194, and Case of Furlan and
family members v. Argentina, para. 125.
347
According to the International Committee of the Red Cross, this obligation has been defined as “[t]he parties in
conflict must do everything possible to re-establish family ties; in other words, not only permit the searches undertaken by
the members of the dispersed families, but also facilitate them.” Commentary on Protocol II Addition to the 194 Geneva
Conventions and relating to the protection of the victims of non-international armed conflicts. Section B. Family Reunion,
para. 4553.
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