Colombia Peace Agreement Case Brief
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
I. Classification of the Conflict and Applicable Law
1. (Document A, paras 1, 44, 50)
a. How would you classify the situation between the armed forces of Colombia and the FARC-EP?
b.What is the applicable law?
c. What is the effect of a special agreement in the sense of GC I IV, Art. 3? Does the absence of a special agreement reduce the obligations incumbent upon the parties to the conflict, with respect to the applicable treaty and customary IHL rules? (GC I IV, Art. 3; GC I III, Art. 6; GC I, Art. 63; GC II, Art. 62; GC III, Art. 142; GC IV, Art. 7 and 158; GC I IV; P I; P II; CIHL)
d.When can an agreement between the parties to the conflict be considered a special agreement? Can it be considered as such if it merely repeats already existing obligations of the parties to the conflict?
e. Is the agreement between the Government of Colombia and the armed group FARC-EP a special agreement in the sense of GC I IV, Art. 3? Which provisions implement IHL? Which do not? What is the risk of mixing political provisions and humanitarian provisions in the same agreement? Does the quote from the ICRC Commentary in Document A, para. 50 imply that entire peace agreements may constitute special agreements according to common Article 3? (GC I IV, Art. 3)
f. Does IHL foresee that Common Article 3 special agreements may or must be deposited with the Swiss federal Council?
g. Is the peace agreement binding on the Government of Colombia and the armed group FARC-EP? Are the parties to the NIAC bound by the whole of IHL, even if they included in the special agreement only specific IAC rules? Why? According to GC I IV, Art. 3(4), does the fact that the FARC-EP are able to conclude a special agreement imply a recognition of belligerency or of international legal personality of the group? (GC I IV, Art. 3)II. Temporal Scope of Application of IHL
2.(Document A, para. 50) What is the temporal scope of application of IHL of non-international armed conflicts? What is the meaning of the statement cited in Document A, para. 50 thathostilities do not always come to an end with the conclusion of a peace agreement? Do some IHL provisions continue to apply, even after the end of an armed conflict? Under IHL, is there any obligation upon States during peacetime? (See ICTY, The Prosecutor v. Tadi?, Appeals Chamber, Decision, 1995, para. 70; P II, Arts 2 and 19; GC I, Arts 5, 47 and 48; GC II, Arts 48 and 49; GC III, Arts 5,127 and 128;GC IV, Arts 6, 144 and 145; P I, Arts 3 and 83)
3. (Document A, para. 22) What are the responsibilities of the Commission for Truth, Reconciliation and Non-Recurrence? Under IHL, is there a right to truth for the families of the victims? (CIHL, Rule 117; GC I, Art. 16; GC II, Art. 19)
4. (Document A, paras 23 26) What IHL obligations do the Government of Colombia and the FARC-EP maintain after the conclusion of the Peace Agreement? What are the obligations towards the dead and the missing? Does the agreement provide for a mechanism for the identification of the dead and the search for the missing as required by IHL? What are the responsibilities of the Special Missing Persons Unit responsible for searching for people reported missing in connection with or as a result of the conflict? Must this unit equally inform the family about who is responsible for the death of their relative? Are the IHL rules on treatment of human remains adequately reflected in the Peace Agreement? What is the role of the ICRC in this process? (CIHL, Rules 112, 113, 114, 115 and 116; GC I, Art. 16 and 17; P I, Arts 33 and 34)
III. Amnesties
5. (Document A, paras 27 37; Document B, paras 56 61) What is theSpecial Jurisdiction for Peace, established by the Agreement? What are its objectives? Over which crimes does it have jurisdiction?
6. (Document A, para. 29; Document B, para. 57) How are the crimes committed as a result of, in the course of or directly or indirectly in connection with the armed conflict defined in Document A, para. 29? Would you suggest that this is an adequate definition of the nexus required for IHL to apply to conduct in an armed conflict?
7. (Document A, paras 37, 41 42; Document B, paras 52 54, 58, 62) Who can benefit from the amnesty provided by the Law 1820/16? What are the effects of the amnesty? Which crimes are amnestiable under the Amnesty Law? Which crimes are excluded? Do you agree with the definition of war crimes provided by the Law in Document B, para. 58 as any violation of international humanitarian law committed in a systematic manner? Why? Why not? May war crimes be covered by such an amnesty if they were not committed systematically? Is this compatible with the customary obligations of States regarding war crimes? Does the Amnesty Law relieve the State of Colombia from its obligations to investigate and prosecute war crimes if they were not committed systematically? (P II, Art. 6(5); CIHL, Rules 158 and 159)
8. (Document A, paras 18, 49, 53, 57 58) How does the Agreement regulate the identification of members of the FARC-EP? How is the identification linked with the grant of the amnesty? Is there any procedural guarantee secured to the members of the FARC-EP deprived of their liberty as a consequence of the delivery of the lists to the governmental authorities?
9. (Document A, paras 38 40; Document B, para. 60)
a. How does IHL address the responsibility of commanders and other superiors for war crimes committed by their subordinates?
b.What rules does the Agreement provide to govern the criminal prosecution of agents of the Colombian State? Is the different treatment for members of State armed forces and for members of armed opposition groups justified? For what kind of conduct listed in Document A, paras 34 and 35 would State agents need and deserve an amnesty? Or at least the special treatment foreseen in Document B, para. 53?
c. What criterion does the Agreement establish to determine the command responsibility of members of the armed forces for crimes committed by their subordinates? Is the same criterion valid for leaders of the FARC-EP? Is the difference justified? Is it foreseen in IHL? Is it compatible with IHL? How does the agreement define effective control in Document A, para. 40? (P I, Art. 86 and 87; CIHL, Rule 153)
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Colombia Peace Agreement Case Brief