Colombia: Time for the ICC Prosecutor to Act?

The controversy evolving around the role and competence of the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) has reached a new peak: Colombian President Iván Duque initiated a frontal attack against the Jurisdiction’s statutory law that goes beyond all previous assaults directed against the country’s Transitional Justice (TJ) system. We argue in this post that the current developments are an alarming threat to the Colombian peace process, and that President Duque’s most recent intent to impede the proper functioning of SJP has the potential to challenge any meaningful existence of that jurisdiction. Ultimately, we argue that this highly critical situation could (and probably should) prompt the Prosecutor of the ICC to take action.      

Previous attempts to weaken the Transitional Justice Process

It is not the first time that President Duque has attempted to undermine the country’s TJ-process. During his election campaign in August 2018, he announced that he would seek amendments to the Final Peace Agreement which was reached in 2016 between the Colombian government  and the Revolutionary Armed Forces of Colombia – Peoples Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP). After his election, Duque’s parliamentary group in the Colombian Congress (Centro Democrático, CD) has turned his words into action launching a proposal for a constitutional amendment that would deny all TJ-organs (including the SJP) access to confidential information affecting national security. The proposal would inhibit the work of all TJ-mechanisms and thus amounts to a frontal attack on the whole system, as has been commented in a previous post.

In October 2018, a new proposal issued by the Colombian Congress suggested the creation of special chambers within the SJP with the sole competence to try members of the Colombian Armed Forces. As a sort of military jurisdiction, whose impartiality and independence is more than questionable, it would unduly privilege members of the Armed Forces involved in international crimes. Thereby, it further threatens to undermine the SJP’s crucial function as the single mechanism responsible to bring all parties of the conflict to justice.

Even though the Colombian Congress has not adopted both proposals so far, they evince the government’s obvious intent to undermine the SJP’s constitutional framework and hinder its proper functioning.

The latest attack on the Special Jurisdiction for Peace

On 10 March, the government doubled down on its attempts to derail Colombia’s TJ-system: President Duque partially objected to the Statutory Law on the Administration of Justice of the SJP (Ley Estatutaria de la Administración de Justicia en la Jurisdicción Especial para la Paz, hereinafter “SJP Statutory Law”). The law regulates the SJP’s work and operates as the Jurisdiction’s legal framework. It had been adopted by Congress in 2017 and was later declared constitutional, apart from a few provisions, by the Colombian Constitutional Court.

In objecting to six provisions of the SJP Statutory Law, Duque applied his constitutional right to object to bills that come to the President’s signature for reasons of their inadequacy (cf. Art. 305 no. 9 of the Constitución Política de Colombia of 1991). Serious doubts arise whether the application of that right under the given circumstances is in accordance with its original purpose, to the benefit of Duque’s political agenda. Duque acted upon a formal request by the Attorney General Néstor Humberto Martínez, another adversary of the SJP, who raised several concerns about some of the Statutory Law’s provisions.

With his objections President Duque pretends to ensure zero tolerance for impunity regarding crimes that fall under the jurisdiction of the SJP (cf. his objections regarding Art. 19, 63 and 79 of the SJP Statutory Law as set out in his presidential address). Moreover, he demands for more concrete regulations concerning reparations for the victims (particularly of material reparations, cf. his objections regarding Art. 7 SJP Statutory Law) and finally demanded more specific provisions on the extradition of alleged perpetrators (cf. his objections regarding Art. 150 and 153 SJP Statutory Law). For the unversed reader, the destructive potential of Duque’s objections is much less obvious than the previous attempts to hinder the TJ-process. Duque also took greater care to conceal their danger. He reaffirmed the government’s commitment to comply with the Peace Agreement, assured his approval of the SJP and argued that his recommendations will even improve the SJP’s work. At a closer look, however, this reasoning only intends to conceal the fact that Duque’s objections to the SJP Statutory Law are an attempt to further derail the peace process – as will be shown in the following.

Duque’s objections to the SJP Statutory Law: An assessment

1. Duque first objected to Art. 7 SJP Statutory Law, which stipulates victims’ reparation as a criterion for the Law’s interpretation, arguing that the rule does not clearly establish the primary obligation of perpetrators to provide reparation for victims. However, the Peace Agreement and its subsequent legislation explicitly obliges former FARC-EP members to contribute to reparation and to use FARC-EP assets for reparation. Duque’s suggestion to specify this obligation is thus obsolete. Moreover, it was his government that pressed Congress to delete the obligation of State Agents to provide material reparation to victims of State crimes, creating thereby a differential treatment with a view to non-State actors that unmasks double standards.

2. Another objection concerns the possibility to waive prosecutions of persons who are not the most responsible of international crimes (Art. 19 paragraph 2 SJP Statutory Law). Duque argues that the State should not renounce prosecuting those responsible for war crimes, crimes against humanity and genocide without having exhausted all available means to seek truth and justice. This objection is particularly problematic because it ignores the ruling of the Constitutional Court whereby it established that renunciation of criminal prosecution pursuant to Art. 19 SJP Statutory Law is conditional on the alleged perpetrator telling the truth, the rights of the victims being guaranteed and that the investigation against those most responsible must continue.

With his call for undifferentiated criminal prosecution Duque ignores that Art. 19 SJP Statutory Law is embedded in a unique holistic TJ-System created by the Peace Agreement (Sistema Integral de Verdad, Justicia, Reparación y No Repetición). The system provides for a temporary institutional setting that satisfies the rights of the victims of the armed conflict and contributes to national reconciliation. Its mechanisms are mutually reinforcing. Since the SJP forms part of the larger TJ-project, a guiding paradigm of this jurisdiction is forward-looking, prospective justice, which aims at putting an end to the conflict (cf. Art. 4 Statutory Law). Accordingly, the SJP is a fairly balanced mechanism that ensures equilibrium between criminal prosecution and alternative sanctions, concentrating its main prosecutorial efforts on the most responsible perpetrators. The underlying idea of prioritization and selection is part and parcel of Colombia’s constitutional TJ framework and has been approved by the Constitutional Court in its Judgment C-579/2013. Also, at the international level, both the Inter-American Court of Human Rights and the ICC Prosecutor have approved this approach. The Court accepted – in its judgment of 26 May 2010 in Cepeda Vargas vs. Colombia – the investigation and prosecution by way of systematic patterns of macro criminality (para. 118-9 and 149). The ICC Prosecutor stated in its 2014 Report on Colombia that it examines in particular, “whether the focus is on those most responsible for the most serious crimes committed” (para. 111).   

In practical terms, Duque’s demands for comprehensive criminal prosecution is not only opposed to the Peace Agreement’s goals but would also lead to the collapse of the SJP. Its jurisdiction ratione temporis spans several decades of brutal armed conflict, making it practically impossible to prosecute all potential suspects for (international) crimes committed during that period. What is more, Duque’s demanded changes would benefit high-ranking officials whose prosecution could and would not be prioritized anymore. Arguing for strict criminal prosecution is thus not only short-sighted. It is also not in conformity with the country’s TJ-system and jeopardizes the peace process as a whole. 

3. A further presidential objection concerns the SJP’s competence to amend the list of ex-members of the FARC-EP, which form the basis of its ratione personae jurisdiction over that side of the conflict. Art. 63 (8) SJP Statutory Law gives the SJP the competence to verify and try persons who, due to force majeure, were not included in said list. Duque alleges that the Government’s Office of the High Commissioner for Peace, being the representative of the President of the Republic, has the sole responsibility and power to verify that list. This objection openly ignores the independence of the SJP and the principle that courts can decide over the scope of their jurisdiction (competence de la competence/ Kompetenz-Kompetenz). It stands in clear contrast to Duque’s supposed respect for the separation of powers. Also, the High Commissioner’s functions are not in any way restricted and thus the objection’s underlying intention is not to strengthen the High Commissioner, but to weaken the SJP.

4. Duque also objects to the exclusive jurisdiction of the SJP to the detriment of ordinary courts (Art. 79 j (3) SJP Statutory Law). In his view it would be a waste of valuable investigative resources if the Attorney General’s Office’s (Fiscalía General de la Nación) capacity and experience were not used for the cases under the SJP’s jurisdiction. Here, again, Duque argues that the rule as it stands would enable impunity and could not guarantee the victims’ right to truth. However, these claims simply ignore that the SJP was precisely created, inter alia, due to the overload and lack of diligence of the Attorney General’s office and the ordinary judiciary (as also affirmed by the Constitutional Court’s Judgment C-674 of 2017). Also, it is not the SJP Statutory Law but the Constitutional Court, in its Judgment C-080 of 2018, which prohibits the ordinary criminal justice to perform investigative and judicial activities with regard to the crimes under the SJP’s jurisdiction. At any rate, the concurring competence between the SJP and the Attorney General’s Office has been one of the critical aspects during the peace negotiations and remains so currently. The SJP depends in large parts on the collaboration of the Attorney General’s Office, since the latter refers proceedings to the SJP. Putting this issue back on the table creates a major risk for the implementation of the Agreement.    

5. The last two provisions which Duque deemed inadequate concern the extradition of alleged perpetrators of crimes that fall under the jurisdiction of the SJP. This highly controversial issue concerns the SJP’s competence de la competence and access to evidence in extradition procedures. Art. 150 SJP Statutory Law establishes the SJP’s exclusive competence to decide upon the legal protection of the person to be extradited. Duque objects to this provision arguing that this regime would, inter alia, seriously affect Colombia’s judicial cooperation with other countries (thinking especially of the U.S.A.). The President does not only exceed again the limits of his executive powers, ignoring the SJP’s independence and its constitutionally guaranteed right to hear the cases concerned (cf. Art. 19 of Legislative Act 001 of 2017). In fact, his objection turns out to be unconstitutional since the Constitutional Court has made clear, in its Decision 401 of 2018 and its Judgment C-112 of 2019, that it is the SJP’s task to establish the necessary facts with regard to a possible extradition. In addition, this objection also jeopardizes the rights of the victims to know the truth. Thus, it appears as another attempt to diminish the role and power of the TJ-mechanisms.

6. The second extradition provision that was objected by Duque is declared inconvenient because it does not specify the extradition procedure and lacks a timeframe for the mandatory disclosure of the truth prior to an extradition (Art. 153 SJP Statutory Law). Duque argues that this provision would produce a perverse incentive for third parties to submit themselves to the SJP in the guise of alleged disclosures of truth. However, the Constitutional Court and the Supreme Court (Corte Suprema de Justicia) already clarified that the extradition must be suspended until full truth is granted to the victims and society as a whole. According to Duque, this situation could be abused to avoid criminal responsibility before the legal systems of other states. Again, his reasoning stands in clear contrast to the basic idea of the TJ-framework to primarily establish the truth and guarantee the victims’ right to access to justice and reparation. Furthermore, it reminds us of the extradition of important paramilitary leaders to the U.S. within the framework of the Peace and Justice Law (Law 975 of July 25, 2005) during the mandate of Álvaro Uribe, Duque’s political mentor. These extraditions have stopped the truth-telling of these leaders and have therefore been strongly criticized, not least by victims’ organizations.

Conclusion: Time for the ICC Prosecutor to act?

The foregoing considerations make clear that President Duque takes advantage of a constitutional right in order to promote his political agenda that increasingly appears incompatible with the spirit of the Peace Agreement. Additionally, many of the objections raised by Duque ignore the Constitutional Court’s rulings and blatantly disregard its competence. Following the objections, the Congress must now review the SJP Statutory Law again and any amendment has to undergo another review by the Constitutional Court as just made clear by the very Court in its Decision 123 of 2019. Thus, the most immediate consequence of the President’s objections will be a further delay for the entry into force of the Statutory Law.

As if this were not enough, further attacks are to be expected. In fact, Duque already announced that he is preparing a constitutional amendment to modify Legislative Act 001 of 2017 – the key law designing Colombia’s TJ-system that also created the SJP. The requested changes would, inter alia, limit the SJP’s competence. Reopening the lengthy and complex debate about Legislative Act 001 would further exacerbate the SJP’s already weakened situation, and has the potential to give the final blow to its effective functioning.  

The ICC Office of the Prosecutor (OTP) commenced a preliminary examination of the situation in Colombia in June 2004. Under the principle of complementarity, it has the responsibility to ensure that national authorities are genuinely investigating and prosecuting the crimes set out in the Rome Statute – in the Colombian case crimes against humanity and war crimes committed by all parties to the armed conflict. The OTP has been monitoring the recent developments closely and demonstrated on several occasions its support for the SJP. Deputy Prosecutor James Stewart stated in 2018 that the effective work of the SJP is one of the key conditions for the ICC’s complementarity assessment in Colombia. The government’s multiple, thinly veiled attempts to obstruct the work of the SJP seriously question its willingness to investigate and prosecute international crimes. While Duque does not grow tired to emphasize his commitment to fight impunity for international crimes, in reality he uses every loophole to weaken the SJP. He seems intent on shattering the basic pillars and premises of the Peace Agreement  and this has generated protest among the participants in the peace negotiations (cf. the open letter to the UN Secretary General of 11 March 2019). Duque’s objections make a decision of the OTP to open a formal investigation into certain Colombian cases ever more pressing. Perhaps now letters sent to the Colombian authorities are no longer sufficient but real action is required.