Colombia, Constitutional Conformity of Protocol II Case Study
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
Colombia, Constitutional Conformity of Protocol II Case Study
1. What are the advantages and disadvantages of the Colombian system, which prescribes a preliminary review by the
Constitutional Court of whether an international treaty by which Colombia is about to be bound is compatible with the
Colombian Constitution?
a. Are States not party to a treaty which contains a rule of IHL still bound by that rule if it is a rule of customary law or it
belongs to jus cogens? Do all rules of IHL belong to jus cogens? Is a rule of IHL not belonging to jus cogens binding?
b. Is every rule belonging to customary law or to jus cogens also binding on an armed group fighting within a State
against the government? Are only such rules binding on such a group?
c. Did Protocol II become part of Colombian law through Art. 214(2) of the Colombian Constitution even before
Colombia became a party to Protocol II?
3. Are the rules of IHL subject to possible derogation in exceptional situations, e.g., in armed conflicts? In emergency
situations not amounting to armed conflicts?
4. In which sense do rebels fighting against a government become subjects of international law thanks to IHL? Does
your answer depend on whether the State in question is a party to Protocol II?
5. Are special agreements under common Art. 3(3) of the Conventions subject to the law of treaties? Are they legally
binding? Do the humanitarian obligations such agreements foresee exist independently of such agreements? What
purpose do they have in this case?
6. In which sense does a distinction between jus ad bellum and jus in bello exist in non-international armed conflicts?
Are non-international armed conflicts prohibited under international law?
7.
a. Under the reasoning of para. 22 of the ruling, are all rules of IHL applicable in non-international armed conflicts?
Because or insofar as they belong to jus cogens? At least in Colombia, owing to Art. 214(2) of the Colombian Constitution? Does Art. 214(2) make them applicable even outside armed conflicts? Does Art. 214(2) incorporate the
treaties of IHL independently of their rules on their material scope of application?
b. Why is the principle of distinction applicable in non-international armed conflicts? Because it is the only way to
protect the civilian population? Because it is a rule of customary law applicable to international armed conflicts?
Because parties to non-international armed conflicts have created, through their behaviour, this rule of customary law?
Because it is implicit in the prohibition to attack the civilian population set out in Art. 13(2) of Protocol II?
c. Do the laws of international and of non-international armed conflicts distinguish between the same categories of individuals under the principle of distinction? Does Protocol II, Art. 4 establish the principle of distinction between
civilians and combatants? Is that principle mentioned anywhere else in Protocol II? Why do you think Protocol II is not
worded the same way as Art. 48 of Protocol I?
d. According to the Court, did a non-international armed conflict exist in Colombia at the time of the decision? Were the
conditions for the applicability of Protocol II fulfilled?
e. Why should Protocol II be read with Protocol I, Arts 43 and 50? How does the Court conclude that the rules of the law of international armed conflict not mentioned in Protocol II (or GC I-IV, Art. 3) nevertheless apply to non-international
armed conflicts? Because they are customary? Because without them the guarantees foreseen in Protocol II are void?
Are all paragraphs of Protocol I, Art. 50 equally applicable in non-international armed conflicts even if they do not
appear in Protocol II, Art. 13? What elements of Protocol I, Art. 50 do not apply even by analogy in non-international
armed conflicts?
f. Why is the prohibition of feigning civilian status not mentioned in Protocol II? Why is such behaviour nevertheless
prohibited in non-international armed conflicts? Because of the Martens clause? Because it is prohibited by customary
law? Because it is implicit in the prohibition to attack civilians?
8. Why may a superior order to commit a serious violation of IHL not be carried out?
9. In what respect does the interpretation of Protocol II, Art. 6(5) given in this decision contradict that of the SupremeCourt of South Africa in South Africa, AZAPO v. Republic of South Africa? Which arguments are similar? What additional
arguments on the interpretation of Protocol II, Art. 6(5) appear in the Colombian decision?
Colombia, Constitutional Conformity of Protocol II Case Study
RUBRIC
Excellent Quality
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Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Literature Support
91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
58-53 points
Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
Poor Quality
0-45%
37-1 points
The background and/or significance are missing. No search history information is provided.
75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
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Colombia, Constitutional Conformity of Protocol II Case Study