Are Aerial Fumigations in the Context of the War in Colombia a Violation of the Rules of International Humanitarian Law?

Author:Morgane Landel
Position:Criminal defense attorney, Open Society Justice Initiative

Violations of international humanitarian law ("IHL") by all actors- including the government, left-wing rebel groups, and right-wing paramilitaries-in the Colombian internal conflict are well documented. 1They include kidnappings, disappearances, torture, and extra judicial killings. 2 This Article examines the Colombian government's aerial fumigations of coca crops and argues... (see full summary)

Criminal defense attorney, Open Society Justice Initiative. She has previously worked as a public defender in London and in the war crimes department of the prosecutor's office of Bosnia Herzegovina. She obtained a BSc in International Relations from the London School of Economics, did her professional training in law at the College of Law of England and Wales and obtained her LLM at Columbia Law School.

I. Background To The Conflict

This Article concentrates on aerial fumigations after the Colombian government's launch of Plan Colombia in 2000. 3 Former President Andres Pastrana initially conceived Plan Colombia as a six-year mission to end the conflict, further security and development, and eliminate drug trafficking. 4The United States is the primary funder of Plan Colombia, though Colombian policymakers anticipated that many countries would participate. 5 As a result of Plan Colombia's campaign against drug cultivation and trafficking, the Colombian government greatly increased aerial spraying of coca plants since 2000. From 2000 to 2008, the U.S. government spent $458 million on drug eradication in Colombia. 6

In 1999, net cultivation of coca stood at 122,500 hectares of land and the Colombian government used aerial spraying on 43,426 hectares of land. 7 The Colombian government used manual eradication for the first time in 2004. 8By 2007, the Colombian National Police ("CNP") and Anti-Narcotics Directorate ("DIRAN") increased aerial spraying to 153,133 hectares, and increased manual eradication to 66,396 hectares. 9 Coca cultivation in 2007 also increased to 167,000 hectares, up from 136,200 hectares in 2000. 10 The government has also targeted poppy fields as part of the eradication program. 11 This Article concentrates on coca fields because poppy cultivation is minimal and, in 2007, stood at only 1000 hectares. 12 These numbers show that along with coca cultivation, aerial fumigation has increased greatly since 2000.

The CNP and DIRAN have increased manual eradication efforts due to the backlash caused by aerial fumigation. Manual eradication is a process by which the coca plant is pulled out from the ground by hand, removing the plant for good without requiring the use of chemicals. 13 Although manual eradication may be more effective than aerial fumigation, the U.N. Office on Drugs and Crime ("UNODC") 14 nonetheless has observed replanting in areas where the government used manual eradication. 15

II. Is There An Armed Conflict In Colombia?

Since its independence from Spain in 1819, conflict has plagued Colombia. 16 The most recent fighting started in the 1960s after the creation of the country's two largest insurgent groups, the Fuerzas Armadas Revolucionarias de Colombia ("FARC") and the Ejercito de Liberacion Nacional ("ELN"), both left-wing rebel movements. 17 In 2007, Raul Reyes, Commander of the FARC, estimated that he commanded 18,000 FARC fighters. 18 However, in 2008, news journalists Helen Murphy and Bernard Lo reported that FARC consisted of approximately 8000 fighters. 19 The ELN is a somewhat smaller group, with an estimated 2000 to 3000 fighters; it operates mostly in the northeastern part of Colombia. 20 The Autodefencias Unidas de Colombia ("AUC"), the main right-wing paramilitary group, formed in response to the leftist insurgents. 21 The AUC officially disbanded in 2006, although a number of individual members have resumed violent and illegal activities since then. 22

Most commentators, both in and out of Colombia, agree that an armed conflict exists in Colombia. In 2004, the International Committee for the Red Cross ("ICRC") estimated that the conflict between the government and guerilla forces had gone on for forty years. 23 In 2007, it claimed that despite the demobilization of some paramilitary groups, new armed groups had emerged and clashes were continuing in various areas of the country. 24 In addition, FARC and ELN continued fighting in the Nariño region in Southern Colombia. 25 The FARC acknowledged the existence of an armed conflict in a 2006 letter to the government demanding that negotiations begin on a ceasefire and the end of hostilities. 26 The U.S. Army has acknowledged that Colombia has been "waging an internal struggle for peace" for the last forty years. 27 Finally, the Constitutional Court of Colombia said that Additional Protocol 2 to the Geneva Convention ("AP2" or "Protocol") is applicable in Colombia, 28 thereby recognizing the existence of an armed conflict.

Various peace talks have not led to the end of the conflict. In 1999, Pastrana transferred an area of 42,000 square miles to the FARC as a prelude to peace talks. 29 These rounds of peace talks ended in 2002 when Pastrana ordered the area to be taken back from the FARC. 30 The Colombian government has since been able to resume talks with the FARC, although only in relation to prisoner exchanges. 31 Additionally, from 2004 to 2007, eight rounds of negotiations between the government and ELN produced no results. 32

On this basis, this Article recognizes that there is an armed conflict in Colombia between the government and a variety of armed groups. There are other issues surrounding the conflict in Colombia, including the conflict's international dimension. The United States provides a large amount of military aid, both monetary and otherwise, to the Colombian government. In addition to aid that is earmarked for drug eradication, from 2000 to 2008 the U.S. government gave the Colombian government over $3.4 billion. 33 Reliable sources have alleged that other states, notably Ecuador and Venezuela, are also funding the guerillas. 34 However, as the conflict itself is limited to the territory of Colombia, this Article will look at the law of non-international armed conflict. Despite other actors' potential involvement in the conflict, the scope of this Article is limited to whether the Colombian government is responsible for IHL abuses.

As this is a domestic armed conflict, AP2 applies. 35 Colombia ratified AP2 on August 14, 1995. 36 Article 1 of the Protocol provides that rebels must hold territory for AP2 to apply. 37 As described above, the government issued the FARC a substantial area within the country in the late 1990s, which the government ordered the army to reclaim when talks broke down. The FARC retained control of the territory until 2002, and by all accounts retains that initial territory today. Current estimates claim that the FARC continues to be active in one-third of the country, mostly in the Southern and Eastern regions. 38 The AUC has traditionally had a strong presence in the Magdalena Region and the North, but it has increased its control and displaced other armed groups since the late 1990s. 39 The International Crisis Group reported that the areas each group controlled changed hands regularly in 2005 as a result of the fighting between them. 40 This Article deals with fumigation from 2000 onwards, and armed groups have clearly had control of territory during that time.

Furthermore, the Colombian Constitutional Court has ruled that under Article 214 of the constitution, the rules of IHL should be respected in all cases. 41 As such, AP2 applies whether or not the conflict has reached such a level of intensity that Article 1 of AP2 applies. Although this ruling is not relevant to Colombia's international obligations, it shows that IHL applies domestically.

III. Is Coca Cultivation Linked To The Armed Conflict?

To place the fumigation of coca crops in the context of IHL, the act of fumigating needs to be sufficiently linked to the armed conflict. In times of war, certain state actions may violate human rights standards or domestic law, but because the violations are not linked to the armed conflict, they cannot be considered IHL violations. IHL protects civilians in times of war. Therefore, to violate IHL, state action must occur in the context of the armed conflict. 42 In 2005, sixty-five of the FARC's 110 operational units were involved in poppy or coca cultivation. 43 Since 1996, the AUC has moved into coca-growing regions, displacing the guerillas there. 44 In 2000, seven AUC blocs existed in coca growing regions. 45 Following partial demobilization by the AUC in 2006, the new groups that formed in the resulting power vacuum engaged in drug trafficking as their primary source of income. 46 In 2003, the Colombian government claimed that drug trafficking was a threat to peace in Colombia. 47

There is evidence that many people who grow coca in Colombia do so because of economic need or pressure from guerillas and paramilitary groups who use the coca to generate revenue. 48 Since 2000, the FARC has forced Southern Colombian farmers to plant coca crops, and has provided them with loans on their future harvests. 49 Beginning in 1996, the AUC has reportedly offered individuals more money for coca paste than the FARC. 50 This evidence shows guerrilla and paramilitary groups use revenue from coca cultivation to finance the armed conflict.

IV. What Is The Legal Framework For Growing Coca In Colombia?

The Colombian Penal Code prohibits the cultivation of coca plants. 51There are, however, some exceptions to this prohibition. There is no criminal penalty for owning a plantation of less than twenty plants. 52 In addition, some indigenous communities are entitled to grow coca legally. 53 The 1991 constitution granted indigenous peoples the autonomy to govern their territories according to their customs. 54 This is not an unqualified right permitting the community to do anything it wants; the government is entitled to regulate the cultivation of plants used to make illegal substances according to the use and practices of indigenous cultures. 55 Yet, it has recognized through legislation that it should protect social, cultural, religious, and spiritual practices. 56

When Colombia ratified the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances on June 10,...

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