Responsabilidad Penal del Asesor Jurídico Operacional en la Realización de Operaciones con Aplicación de la Fuerza como Primera Opción

Abstract

The investigation was carried out bearing in mind that in Colombia there is no known history of the involvement or conviction of operational legal advisers, a figure created in compliance with international standards in order to advise the commander in the military decision-making process. on the occasion of the result of military operations with the use of force as the first option, which, by their nature, must be subject to the norms that make up IHL through the figure of the constitutionality block, and that have been typified in the title ii of the Colombian penal code. Specifically, the question that guides this investigation is the following: What are the factors that must be taken into account when analyzing the possible legal responsibility that could be attributed to the operational legal advisor, in carrying out operations with the application of force as the first option and on the occasion of their functional duty? To examine his eventual responsibility, the guiding work should be based on the order of operations, therefore, the quality of the author will depend on his possibility of having control of the fact in the commission of the crime, the binding nature of his orientation. and if that orientation ignored the humanitarian provisions applicable to the specific case. Regarding the requirement of unlawfulness in punishable behavior, when the operational result presents a causal link with the actions developed taking into account its advisory role in the design of the operation itself, provided that one of the causes established in the article does not operate. 32 of the Penal Code, with the exception that due obedience does not apply when the order is manifestly illegal. The guilt in the commission of conduct that violates IHL only admits fraudulent modality and according to the profile of suitability that the advisor must have, it could hardly be exonerated in an error of law, since it could only be exonerated to the extent that it does not know essential elements for develop its guiding work, for example, intelligence information to determine the presence of people or protected property. Finally, the field interviews carried out in this work, allow to establish the knowledge that the advisers have regarding their responsibility in the face of an operational result where their activity may be questioned, in accordance with the principle of trust.