When is detention by non-State actors a war crime? The Special Jurisdiction for Peace's decision on hostage-taking by the FARC-EP

Abstract In its Macro Case 01, the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP) studied massive detentions committed by the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) to determine if they should be remanded to amnesty proceedings or tried as international crimes. This included the question of detention of civilians and persons hors de com bat for an eventual “humanitarian exchange” with imprisoned guerrilla fighters. The JEP concluded that this was in fact the crime of hostage-taking, because the sole reason for the detention was to force a “prisoner exchange”, and conditions of detention were so harrowing that persistent detention amounted to a threat to the life and physical security of the hostages. While the JEP did not refer to conditions of lawful detention, the ruling does suggest circumstances of lawful detention by non-State armed groups and limits to their authority to detain.