By Rodrigo Uprimny, EL ESPECTADOR, November 11, 2023
(Translated by Eunice Gibson, CSN Volunteer Translator)
Antonio García, commander of the ELN, claimed that the kidnapping of Luis Manuel Díaz was “a mistake”, it was wrong to deprive the father of a football player as beloved as Lucho Díaz of his liberty. But he added that, when they did it, the guerrillas did not violate any commitment, because the ELN had never agreed to put an end to kidnapping for extortion (or “retention”, as they call it) to finance their rebellion.
García was right that that kidnapping was an error, never mind how big of an error. Definitely an own goal. But he’s wrong when he says it was just a “mistake” and that the ELN has a right to continue with its “retentions” while there has not been a solution as to the financing of their troops during the peace process. Those statements ignore the fact that kidnappings for extortion are an atrocious crime that is injurious to human dignity and that violates International Humanitarian Law (DIH), which the ELN in the ceasefire agreement did promise to respect. In fact, Point I of the “Protocol” of that agreement states explicitly that the parties commit “not to carry out any actions prohibited by DIH, especially those contained in Protocol II of 1977, in addition to the Geneva Convention.”
The ELN has claimed that it has a right to its rebellion and that therefore it may resort to kidnapping for extortion in order to finance it, and that the DIH does not prohibit “retentions” for economic purposes.
I won’t enter into a profound discussion as to whether the ELN has a right to take up arms and persist in the war. I don’t believe so, because any possible reasons that might have legitimized their rebellion in the ‘60’s—which I personally don’t believe have ever existed—in any case have disappeared a long time ago. But my contention is that, even if we were to accept, for the sake of argument, that the ELN has a right to rebellion and to make war against the Colombian government (the ius ad bellum as the classical jurists call it) nevertheless, it does not have the right to violate the laws of war (the ius in bellum) which is the so-called DIH which establish legitimate methods of combat and clearly prohibit kidnapping for extortion.
The ELN have claimed that that prohibition does not exist because there is no rule in the DIH that expressly proscribes kidnapping. But that theory is untenable, as I believe I have demonstrated in detail in two writings in April of 2017: a column in this newspaper, and an extensive article in La Silla Vacia. The essence of the matter is the following: it’s true that the word “kidnapping” does not appear in the DIH; this is explained because kidnapping is in the category of internal laws and not international laws. However, the DIH prohibits the “taking of hostages” in Article 3 of the Geneva Convention and Article 4 of Protocol II. The taking of hostages, according to the International Convention of 1979 or the Statute creating the International Criminal Court, takes place when an armed group overpowers an individual and threatens to kill them, injure them, or keep them in detention for the purpose of forcing a third party to “take an action or omission as an explicit or implicit condition for the liberation of the hostage”. This is exactly what the ELN’s “retentions” are.
The ELN’s kidnappings for extortion violate the DIH and are a war crime. Besides that, their continuation puts the peace process, which has made significant progress and which many of us support, at very serious risk. So it’s incomprehensible that the guerrillas who say they respect the DIH, that they are fighting for the interests of the Colombian people, and who value the participation of the public, would continue in an atrocious practice that violates DIH and which is rejected by all of Colombia. The ELN have to abandon kidnapping and free all of their kidnapping victims if they really want a peace that the people can support. That should not just be a demand by the government, but rather, it’s a demand by all of Colombia.