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Colombia: Time for the ICC Prosecutor to Act?

Published on April 2, 2019        Author:  and
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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 Read the rest of this entry…

 

The “Command Responsibility” Controversy in Colombia: A Follow-Up

Published on March 13, 2019        Author:  and
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A key issue arising out of the peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas is the definition of “command responsibility” that the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply when it prosecutes army commanders.

In 2017, the Colombian Congress passed a constitutional amendment containing a “command responsibility” definition that is inconsistent with the one applied under international law. A previous post reviewed the background and lead-up to the approval of that legislation. This post will examine how the controversy has evolved since. The post begins by describing the submission by the Prosecutor of the International Criminal Court (ICC) of an unusual amicus brief to Colombia’s Constitutional Court about the compatibility of the definition with international law. We then summarize the Constitutional Court’s decision upholding the definition in the amendment, before considering an ongoing case involving a former army chief, where the definition is being tested.

ICC’s Prosecutor amicus brief

In September 2017, Fatou Bensouda, the Prosecutor of the ICC (which has the situation in Colombia under preliminary examination), visited the country to obtain clarifications on certain aspects of the Special Jurisdiction for Peace, as well as information on the status of the relevant national proceedings. A month later, she submitted an amicus brief to the Colombian Constitutional Court. The brief was initially filed confidentially, but was leaked to the media and posted online. Read the rest of this entry…

 
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The ICC’s Impact on National Justice: Can the ICC Prosecutor Catalyze Domestic Cases?

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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

The International Criminal Court (ICC) is a court of last resort. Under the court’s treaty, the Rome Statute, which marks its 20th anniversary this year, the world’s worst crimes are admissible before the ICC only if national authorities do not genuinely investigate and prosecute cases. Far from simply a jurisdictional limitation, this principle of “complementarity” transforms the ICC from a single institution into a broader system for prosecuting international crimes, rooted in national courts.

Bolstering national proceedings is crucial to giving full effect to the Rome Statute system. It’s also necessary to broaden victims’ access to justice. The number of situations in which the ICC should act is probably far greater than the court’s founders envisioned. The ICC’s limited resources—provided all too sparingly by its member countries—mean it is struggling to keep up.

More attention should be paid to the ICC’s potential as an active player on national justice. Under the concept of “positive complementarity” it can serve as part of a wide array of efforts to press and support national authorities to carry out genuine investigations and prosecutions. The ICC is not a development agency, but it can lend expertise, broker assistance between other actors, and maintain focus on the need for accountability.

This is the case when the ICC opens its own investigations, as there will be a need for additional domestic investigations and prosecutions to bring comprehensive accountability. But the ICC’s Office of the Prosecutor has a particularly important role to play when it is still considering whether to open an investigation, during “preliminary examinations.”

This is because the prosecutor’s office has unique leverage in some of these preliminary examinations. If national authorities have an interest in avoiding ICC intervention, they can do that by conducting genuine national proceedings. By making the most of this leverage, the prosecutor’s office can be an effective catalyst for justice. The office recognizes that opportunity and has made it a policy goal to encourage national proceedings when it is feasible.

Human Rights Watch supports these efforts, given that they could help extend the reach of justice. But building on a set of 2011 recommendations, we wanted to take a fresh look at whether and how this policy is working, with a view toward strengthening its effect.

Our findings are set out in a May 2018 report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom. 

Read the rest of this entry…

 
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Joint Symposium with Justice in Conflict on Human Rights Watch’s Report on The ICC’s Impact on National Justice

Published on December 6, 2018        Author:  and
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While investigations by the International Criminal Court (ICC) have received the lions’ share of attention and scrutiny from scholars and observers, there has been a growing interest in the impact of the ICC’s preliminary examinations. The preliminary examination stage requires the ICC Prosecutor to ascertain whether alleged crimes fall within the Court’s jurisdiction, whether the crimes are of sufficient gravity to warrant investigation, whether there are ongoing proceedings related to those alleged crimes, and whether an investigation into alleged atrocities would be in the “interests of justice”. If the answer to each is ‘yes’, then the Prosecutor can seek an official investigation.

There are currently ten open preliminary examinations across four continents: Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, the Philippines, Bangladesh/Myanmar, Ukraine, and Venezuela. But what have the political and legal impacts of these preliminary examinations been? Have they galvanized greater interest in achieving accountability? What lessons can be drawn from preliminary examinations to date in order to improve the prospects of justice?

To answer these and other questions, EJIL:Talk! and Justice in Conflict are delighted to host a discussion of the Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, and of ICC Preliminary Examinations more generally.

The symposium coincides with the Assembly of States Parties (ASP) to the ICC, which begins its annual session this week. One of the highlights of the ASP is the release of the Office of the Prosecutor’s (OTP) 2018 Report on Preliminary Examination Activities. The report summarises the activities of the Office with regard to situations which are under preliminary examination by the Prosecutor.  

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Reforming Land Restitution – A Concerted Effort to Derail Colombia’s Transitional Justice System?

Published on November 2, 2018        Author: 
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Recently, Kai Ambos alerted readers of two attempts to weaken Colombia’s transitional justice system (see here and here). A third development fortifies suspicions that the country’s newly elected government intends to derail it. This time, a legislative proposal threatens Colombia’s land restitution process. Changes in the treatment of secondary occupants of reclaimed land could especially frustrate this integral part of the elaborate reparation efforts.  

Land Restitution in Colombia

The struggle over land has long been at the core of the Colombian conflict. With 7.7 million people, Colombia hosts the world’s largest population of internally displaced persons. IDPs constitute the vast majority of the 8.7 million registered survivors of the armed conflict. Studies estimate that displacement has affected 11.4 million hectares of land. Accordingly, former President Santos included land restitution as a central element in the 2011 Law on Victims and Land Restitution – the largest reparation program in the world. To manage the massive caseload, a newly created entity, the Land Restitution Unit (Unidad de Restitución de Tierras, URT) administers a special three-phase restitution process. In the first administrative phase, the URT decides on a survivor’s request to have his or her land entered into the Register of Evacuated or Forcibly Abandoned Land (Registro de Tierras Despojadas y Abandonadas Forzosamente). The URT collects evidence and evaluates whether the survivor convincingly demonstrates his or her displacement and a legal relationship to the land they seek to reclaim. Once registered, the survivor proceeds to the judicial phase, in which a specialized judge decides the claim with finality. A positive sentence constitutes a legal title to the land. The judge can further order any measures necessary to guarantee an effective return to the restituted land in conditions respectful to the survivor’s human rights. Among these measures are debt relief, and technical and financial assistance for economic projects. In the post-sentence phase, the judge remains seized and can issue further orders if the survivor encounters problems in the return process.

Secondary Occupants

Of course, the process is not perfect. Read the rest of this entry…

 

Another Challenge for Colombia’s Transitional Justice Process: Aggravated Differential Treatment between Armed Forces and FARC

Published on October 19, 2018        Author: 
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A new proposal for a constitutional amendment has caused another highly controversial debate in Colombia. The proposal foresees the creation of “special chambers” within the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) with the exclusive competence to try members of the Armed Forces. Just a quick reminder: The Final Peace Agreement was concluded between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) in November 2016. It introduced the SJP as the Peace Agreement’s single legal mechanism, responsible for bringing all parties to the conflict to justice. The new government and its party in the Colombian Congress (“Centro Democrático”) are keen to make some reforms to the SJP. A few weeks ago we have discussed here a proposal to radically limit the access of the SJP and other organs of the Colombian TJ System to information related to national security. The now proposed constitutional amendment is the result of a debate that had already started earlier this year at the time of the negotiations regarding the SJP’s Rules of Procedure and Evidence (RPE). It evolved around the introduction of Article 75 RPE which provides for a special procedure for the Armed Forces in relation to the crimes committed during the armed conflict. The rule was finally adopted and ultimately paved the way for this recent proposal.

The authors of the proposal (among them former President Alvaro Uribe Vélez, one of the Peace Agreement’s most vocal opponents) consider that the Armed Forces “have fought in the name and in favor of the legitimate State”, including those members  that committed crimes not eligible for amnesty; in contrast, the FARC are characterized as just a “criminal organization pursuing criminal purposes” (Explanatory Statement to the proposal (ES), p. 11 [all translations by the author]). The proposal’s aim is, of course, to strengthen the position of the Armed Forces, especially of those members involved in international crimes and thus possibly subject to national or international proceedings. However, as it stands the proposal will do a disservice to the Armed Forces which should rather stick to the existing mechanisms of the SJP in order to have higher security with regard to the International Criminal Court (ICC). For reasons of space, I cannot explain here the multiple problems of the proposal with regard to the current Colombian constitutional system (especially, but not exclusively regarding the SJP), and its international obligations (regarding the jurisprudence of the Inter-American Court of Human Rights, the ICC and under International Humanitarian Law). Instead, I will focus on the serious problem that the proposal creates for its presumed beneficiaries with regard to the preliminary examination undertaken by the ICC’s Office of the Prosecutor (OTP).

The proposal has implications for the application of the complementarity principle, which regulates the relationship between national jurisdictions and the ICC. Read the rest of this entry…

 
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Transitional Justice Without Truth?

Published on August 27, 2018        Author: 
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During his election campaign, Colombia’s new president Iván Duque announced that he would seek amendments to the peace agreement with the FARC-EP of 24 November 2016 and the ensuing unique Colombian system of Transitional Justice (TJ) (Sistema Integral de Verdad, Justicia, Reparación y No Repetición, SIVJRNR– see here for details of that system). Now, the parliamentary group of his party (Centro Democrático, CD) in the Colombian Congress has followed his words with deeds and launched a proposal for a constitutional amendment (Transitional Article 5A) (of which the government, however, was, according to its spokesperson, not aware). Under this amendment, all the TJ-organs, in particular the Truth Commission (Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición) and the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), will be denied access to confidential information affecting national security. This proposed amendment follows another change that the CD  has proposed to the procedural regime of the Special Jurisdiciton for Peace, shortly after the presidential election (still in the former Congress). Under that change, surrender of military personnel to the Special Jurisdiction for Peace would be voluntary and there would be a separate jurisdiction for the military. However, the constitutionality of this rule is very doubtful because it would undermine the constitutional TJ framework. From this perspective, it is consistent that the new government is now preparing an amendment of the Constitution itself, by denying the TJ organs access to information.

Of course, the new proposal amounts to a frontal attack on any TJ-system, because its central component is the establishment of (historical) truth and, based on this, a cultural memory. Such a cultural memory is important for any transitional society in its entirety, both for victims and perpetrators, as both groups are part of this society. But how can a proposal that practically hinders the establishment of truth and memory be reconciled with victims’ rights that the new government has repeatedly called for, in particular the right to truth? How can historical truth be established without access to the information in question? Read the rest of this entry…

 

The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights

Published on February 26, 2018        Author:  and
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The Inter-American Court’s Advisory Opinion on Environment and Human Rights, released on 7 February 2018 (in Spanish only) (for brevity “AO”), is the latest and potentially most significant decision in a series of high profile international judicial rulings which acknowledge legal consequences for environmental harm. As recently as 2 February 2018, the International Court of Justice in the conjoined Costa Rica v. Nicaragua / Nicaragua v. Costa Rica cases ordered Nicaragua to pay compensation to Costa Rica for environmental damage, its first ever order for such compensation. Earlier, the ITLOS issued a landmark provisional measures order in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case 23), prescribing provisional measures protecting the marine environment, inter alia suspending all ongoing oil exploration and exploitation operations in a disputed area. To that list one could add the 2017 decision of an ICSID tribunal in Burlington Resources, Inc. v. Republic of Ecuador to award some US$39 million in damages in favour of Ecuador for environmental remediation costs.

The AO (summarized in EJIL: Talk! here) focuses on State obligations under international environmental law and human rights law in the transboundary context, in particular as concerns the construction and operation of infrastructure mega-projects, petroleum exploration and exploitation, maritime transportation of hydrocarbons, construction and enlargement of ports and shipping canals, and so on. 

The AO is ground-breaking in several respects. It is the IACtHR’s first pronouncement on State obligations concerning environmental protection under the ACHR (§ 46). Indeed, it is the first ruling ever by an international human rights court that truly examines environmental law as a systemic whole, as distinct from isolated examples of environmental harm analogous to private law nuisance claims (e.g. Lopez-Ostra v. Spain in the ECtHR). Perhaps most importantly, it is a landmark in the evolving jurisprudence on ‘diagonal’ human rights obligations, i.e. obligations capable of being invoked by individual or groups against States other than their own. The AO opens a door – albeit in a cautious and pragmatic way – to cross-border human rights claims arising from transboundary environmental impacts. Read the rest of this entry…

 

Human Rights and the Protection of the Environment: The Advisory Opinion of the Inter-American Court of Human Rights

Published on February 26, 2018        Author:  and
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On 7 February 2018, the Inter-American Court of Human Rights (the Court, IACtHR) issued the much awaited advisory opinion (A/O) concerning the obligations of States Parties to the American Convention on Human Rights (American Convention, ACHR) in respect of infrastructural works creating a risk of significant environmental damage to the marine environment of the Wider Caribbean Region.

This entry sets out the main findings of the Court, including its approach to the extraterritorial application of the American Convention. With the text of the A/O currently available in Spanish only (here), this post seeks to provide an annotated summary of the A/O to EJIL:Talk!’s readership in the English speaking international law world.

The reformulated scope of the advisory opinion

Colombia, the requesting state, asked for the A/O to be limited to the jurisdictional area established by the 1984 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention).

Colombia’s original, complex and prolix request originally read as follows:

“I. In accordance with Article 1.1 of the [American Convention], should it be considered that a person, although not located within the territory of a State party, is subject to its jurisdiction where the following four conditions are cumulatively met?

1) the person is present or resides in an area defined and protected by a conventional regime for the protection of the environment to which the relevant State is a party; 2) that the said regime establishes an area of functional jurisdiction, for example, as envisaged in the [Cartagena Convention]; 3) that in the said jurisdictional area the States parties have the obligation to prevent, reduce and control pollution through a series of general and/or specific obligations; 4) that as a result of the environmental damage or risk of environmental damage in the area protected by the relevant treaty, which is attributable to the State who is party to both that treaty and to the [American Convention], the human rights of the affected person had been breached or are in risk being breached. Read the rest of this entry…

 

Foreign Jurists in the Colombian Special Jurisdiction for Peace: A New Concept of Amicus Curiae?

Published on December 19, 2017        Author:  and
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One year after the conclusion, on 24 November 2016, of the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army), the implementation of that Agreement now enters a decisive phase. That Agreement was reached after the rejection of the first version of 24 August 2016 by a slim majority of 50.2% of votes. Last month, the Constitutional Court, by unanimous vote, approved the constitutional reform that implements the Agreement through a special legislative act (Acto Legislativo 01 of 4 April 2017). However, the Court objected to some articles concerning the Special Jurisdiction for Peace ( SPJ or JEP – Jurisdicción Especial para la Paz) which is the judicial cornerstone of the Agreement. The judges of the JEP have recently been selected in a transparent and competitive procedure by a fully independent and mixed Selection Committee (Comité de Escogencia).

While the Final Agreement no longer provides for foreign judges – this was one of the points that proved unacceptable to those who opposed the original Agreement, led by former President Uribe – these have now been substituted by foreign jurists called amici curiae. These, too, were recently selected by the Comité de Escogencia on 6 December 2017, with10 in total for the two JEP organs (four for the “Tribunal para la Paz” and six for the “Salas de Justicia”) with two reserve amici for each organ (the first author of this blog was selected for the Tribunal for Peace). However, it is not quite clear what role these amici will ultimately play before the JEP. We will argue in this post that the Colombian concept of amicus curiae differs from the usual international understanding. This can be explained by the particular Colombian context, where, on the one hand, the parties to the Peace Agreement favored the participation of foreign judges in the JEP, but, on the other hand, the strong opposition to the agreement forced the government to even limit the influence of the substitute foreign jurists (amici). While the ‘Colombian model’ is unique and innovative, only practice will show whether the foreign jurists are mere advisors to the different JEP organs or if they will be able to play a more important and influential role by directly participating in the deliberation of the exclusively Colombian judges. Read the rest of this entry…