International Responsibility of the Colombian State toward Members of the Armed Forces: A Conceptual Analysis from the Guarantor Position

Abstract

This research-based article aims to analyze the Inter-American standards concerning the position of guarantor assumed by States with respect to members of the Armed Forces, within the framework of a special relationship of subjection. The research problem focuses on the use of the analogical reasoning developed by the Inter-American Court of Human Rights, according to which members of the Armed Forces may be equated, in certain respects, with persons deprived of liberty in penitentiary institutions, thereby entailing an intensification of the State’s duties of protection. In practice, this analogy is far from a minor detail: if accepted, it alters the level of obligation regarding what the State must prevent, control, and guarantee. From an analytical and critical approach, the article examines the foundations and scope of this analogy, as well as the elements that constitute the position of guarantor and the special relationship of subjection, both from a general perspective and in their specific application to members of the Armed Forces and persons held in penitentiary centers. The analysis makes it possible to assess whether the proposed equivalence is legally consistent and appropriate to the particularities of each group; in other words, whether comparing these two situations functions as a useful analogy or, on the contrary, oversimplifies distinct realities. The scope and significance of the research lie in clarifying the limits and content of State responsibility in contexts of legitimate restrictions on rights, especially  

when dealing with State agents subject to special regimes. At its core, the issue is to delineate how far the State’s duty of protection extends when institutional frameworks themselves impose restrictions. As a central conclusion, the article argues that when the State arbitrarily restricts limited rights or violates non-derogable rights, by action or omission, it must assume direct responsibility, guaranteeing effective mechanisms of protection and restitution, regardless of whether the victim is a State agent or a private individual.