The Special Jurisdiction for Peace (JEP) made an important decision on April 11 regarding a former FARC-EP combatant called “Chancellor”, implicated in joining the Paraguayan People’s Army (EPP) in the 2004 kidnapping of the Paraguayan president’s daughter. The JEP determined it did not have jurisdiction over the case because the “internal” armed conflict only covered national territory.

JEP is a justice component of the complex transitional justice resulting from the 2016 Peace Agreement. It must give juridical solutions to individual and macro cases that have arisen since the beginning of the armed conflict until the Peace Agreement was signed in 2016. Indeed, the JEP laws require judges to directly apply international law to understand the facts and behaviours during the armed conflict. Therefore, the April 11 ruling was crucial as it might have discussed the scope of non-international armed conflict (NIAC) in territorial and extraterritorial contexts.

The ex-FARC members have been treated by two JEP chambers, the Amnesty Chamber (AC) and the True and Recognition of Liability Chamber (TRC). The AC provides amnesty for minor crimes, while the TRC assesses all kidnappings by the former guerrilla in macro case 001. The TRC reviewed large-scale violations of human rights and sentenced former FAR-EP leaders for war crimes and crimes against humanity, including taking hostages and grave deprivations of liberty.

International rebel operations?

The FARC-EP, the oldest guerrilla group in the Western hemisphere, started its armed fight against the Colombian state in 1964. However, the exact date of the beginning of the NIAC, as defined by Common Article 3 (CA3) of the Fourth Geneva Conventions (GC), is not officially established. Nonetheless, it is widely believed to have commenced in 1980 during their Eighth Conference, when the guerrilla shifted from guerrilla warfare to a more positional warfare approach.

Colombia and the former FARC-EP were involved in a NIAC, as indicated in CA3 and interpreted by international courts. A NIAC is defined by the intensity of hostilities and the level of organisation of the parties involved. During the peace process and inside of the Peace Agreement was established the existence of the NIAC situation by Colombian government and former leaders of the guerrilla with the support of international experts (the application of international standards could see in academic perspectives).Therefore, the NIAC character is determined by assessing these requirements.

In that scenario, the former guerrilla had many relationships with other armed groups inside and abroad in Colombia, such as the Irish Revolutionary Army (IRA) or the EPP, as part of the international revolutionary strategy. The “Chancellor” was a member of the International Guerrilla Commission.

Why the “spillover” theory should have been assessed in the “Chancellor” case

Despite the traditional association of NIACs with the territory of the high party, such as in civil wars, international considerations, such as the ‘Chancellor’ case, might come into question. The ICRC Commentary on CA3 states that there is a debate about the geographical scope of IHL in the NIAC scenario due to significant doubt regarding the use of force and the practical implications of extending violence to the second state. However, as the International Criminal Tribunal for the Former Yugoslavia has said, “the temporal and geographical scope of both internal and international armed conflict extends beyond the exact time and place of hostilities”. In the ICRC Commentaries, once the threshold has risen to a NIAC, the IHL provisions govern the whole territory State where some are conducting the hostilities.

The Federal Court of Justice in Germany referred to the spillover theory in the case of Targeting killings in Pakistan. This theory applies a NIAC to the state territory, extending into the territory of a neighbouring state that is not party to the conflict. This could lead to extraterritorial jurisdiction of IHL, as evidenced in the case between Colombia and Ecuador during the Fenix operation against the FARC-EP leader in 2008. 

Nonetheless, the State practice is not regular, and this phenomenon is limited to neighbouring countries. Colombia has many bordering countries, such as Venezuela, Ecuador, Panama, Perú, Nicaragua, and Brazil. In the case of the Chancellor, Paraguay is not a neighbouring country because it is in the south of the continent. Therefore, under the general rule, there is no possibility of spillover.

Despite the simple answer, the issue is more complex in practical cases such as Afghanistan, Yemen, and Chad, where a second State can spread the NIAC regimen over other States, including non-neighbouring countries. In occurrences like the Chancellor case with cooperation between Non-State Groups, the question is whether it is possible to apply this theory or whether there must be an assessment of the new NIAC classification. Consequently, this case was an opportunity to the spill over theory jumped up from the doctrine to the case law. Then, it would have meaned the accuracy determination the extraterritorial jurisdiction scope of the JEP and the IHL enforce in the transitional Colombian scenario.