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Home Posts tagged "Colombia"

The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

Read the rest of this entry…

 

An Assessment of the Colombian-FARC ‘Peace Jurisdiction’ Agreement

Published on September 29, 2015        Author: 

Last week Wednesday (23 September 2015), Colombian President Juan Manuel Santos met in Cuba with the leader of the Colombian guerrilla movement FARC (alias Timochenko”), to publicly announce the agreement to establish a ‘Special Peace Jurisdiction’ reached between the Government and FARC. This is certainly a milestone in the Colombian peace process. While many local and international voices (including heads of government and State of other countries) have been supportive of the agreement (see here and here), a few have rejected its content considering that it fosters impunity. Among those who have objected to the agreement is Alvaro Uribe, the former Colombian president who has been very vocal in his opposition to the conditions of the current peace process and has favored either a militaristic strategy or one in which the guerrilla members subject themselves to ordinary criminal sanctions.

Given the controversy, it is worth briefly considering whether, as critics pose, the agreement would be contrary to international law standards or whether, according to its supporters, it is not only consistent with them but proves to be a unique opportunity to end the conflict with the FARC, which is the oldest operating guerrilla movement in the world.

To do this, it is necessary to briefly look at the content of the agreement. In assessing the agreement, it is important to bear in mind that its full contents are yet to be revealed, and indeed some aspects have not been fleshed out fully. However, the main points of the agreement are set out in the oral statements of the Colombian President and, in greater detail, in written form in a joint communiqué, which can be found (in Spanish) in the official webpage of the Colombian presidency.

The “Special Peace Jurisdiction” – A new Mixed Tribunal?

The key aspect of the agreement is the creation of a judicial body –  ‘Special Peace Jurisdiction’ – which will make decisions on cases related to the Colombian armed conflict and has the capacity to issue extraordinary decisions that differ from those of ordinary criminal trials. The members of the body will mostly be Colombians but it will also include a few foreigners (point 3 of the joint communiqué). Read the rest of this entry…