The rocky road to peace II: additional challenges at the Special Jurisdiction for Peace in Colombia

The transitional justice process in Colombia and the institution at its centre, the Special Jurisdiction for Peace (JEP), have faced a series of difficulties (see here and here). Aware of this, the Prosecutor of the ICC announced on 28 October 2021 the closure of the country’s preliminary examination. This decision was partly motivated by the JEP’s progress in two of its ten ongoing cases. However, while progress at this court is undeniable, the Prosecutor’s decision was viewed by some as premature (here and here). This is not only because the proceedings are still at an early stage, but also because longstanding challenges remain unsolved (see “The rocky road to peace”) and new ones have emerged.

Longstanding challenges

The JEP suffers from at least three major issues: government interference, a large jurisdictional scope, and a lack of a cohesive prosecutorial strategy. All three remain unsolved today.

First, since the beginning of his administration, President Duque has undermined the work of the JEP. This is either directly, by cutting its funding or vetoing its statute, or indirectly, by not ensuring the safety and security of victims, witnesses, and former FARC members. Even though these problems were addressed in an unprecedented cooperation agreement with the ICC, they persist today. This is clear from two recent developments in the country: a 2022 decision by the Colombian Constitutional Court condemning the killing of 54 former FARC members in 2021 and calling for immediate government action; and the killings of two other former FARC members in the first months of 2022.

Second, the large jurisdictional scope of the JEP continues to be problematic. The JEP exercises its jurisdiction over all of Colombia for a period of 50 years. With such a broad temporal scope, far wider than that of any other international criminal tribunal, the JEP may find it difficult to procure evidence for some of the older cases. In others, as pointed out by the Procuraduría, the evidence is so vast that it is not easily processed and analysed by the judges, nor it is readily available to all parties. This in turn raises concerns regarding due process guarantees, particularly the right of the accused to have access to all the facts supporting criminal charges brought against them.

Third, the JEP still lacks a cohesive prosecutorial strategy. This problem manifested early on from the tribunal’s double approach to prioritization. By investigating a set of crimes occurring in a given region (“territorial cases”), while covering the same crimes nationwide (“thematic cases”), a clash was bound to happen. Today this problem continues with the opening of three new “umbrella” cases dealing respectively with all crimes committed by the FARC, by the armed forces, and against indigenous communities. Even though these three new cases would necessarily involve the other seven, no explanation was given as to how to avoid this inevitable overlap.

These three issues, still present at the JEP, were not solved with the progress in cases 1 and 3 highlighted by the Prosecutor. On the contrary, as the next section delves upon, progress in these cases has brought along some problems of its own.

New challenges stemming from cases 1 and 3

As stated by the ICC Prosecutor, progress in cases 1 and 3 is commendable. Through the indictment of eight former FARC members in case 1 (auto 019), and 26 individuals, including state officials, in case 3 (autos 125 and 128), the JEP is working towards accountability for international crimes and guaranteeing victims’ rights. However, a closer look at these indictments reveals issues pertaining to the JEP’s understanding of the sources of international crimes and how to conduct criminal investigations.

Issues with identifying the sources of international crimes

When defining the applicable law, judges in cases 1 and 3 were faced with the ambiguity of the JEP’s statute which did not include a catalogue of crimes under its jurisdiction. Instead, it made a vague reference to national law, human rights, international humanitarian law and international criminal law as the applicable law.

This vague reference to the sources led the judges to rely on the Rome Statute as the sole source of international criminal law when applicable. When the crimes preceded this treaty, case 1 opted for its retroactive application while case 3 resorted to customary international law. These conclusions are problematic for the following reasons.

First, by relying solely on the Rome Statute, both cases inadvertently concluded that this treaty became the only source of international criminal law once it came into force. However, there is an entire body of substantive international criminal law comprised of other treaties and custom that deviate from the Statute in some respects. Relying solely on the Rome Statute implies that the JEP may not prosecute international crimes that are only based on customary international law for instance.

Second, to use the Rome Statute to prosecute crimes that occurred before its entry into force is a violation of the nullum crime sine lege principle. Judges in case 1 justified this by stating that such retroactive application of the Statute was allowed when considering a principle unique to the JEP: the principle of the centrality of victims’ rights. However, it was not explained how the retroactive application of criminal law guarantees the rights of victims or justifies violating the principle of nullum crime sine lege.

Third, when resorting to customary international law as an alternative to the retroactive application of the Rome Statute, case 3 did so without providing sufficient evidence of state practice or opinio juris to support the customary nature of the crimes charged. The judges simply stated that those crimes in the indictments that occurred before the Rome Statute existed, had already been prosecuted by the ad hoc tribunals. While important, the practice of the ad hoc tribunals is neither state practice nor opinio juris and their claims of customary crimes were in many cases considered creative law-making.

Aside from these problems with the sources of international crimes, case 1 also had an issue with carrying out the investigation that led to its first indictment. This is elaborated on in the next section.

Issues conducting criminal investigations

Even though the evidentiary threshold at this stage is low (‘reasonable grounds to believe’), the evidence that supports the indictments in case 1 may not be enough to secure convictions at trial. This is due to the passive role in conducting investigative efforts in this case. The judges in case 1 simply collected the information from databases and reports submitted by different organizations with little to no reference to direct evidence such as the statements of victims or witnesses. But even if cases do not reach trial, because of an admission of guilt or reconocimiento, relying on this insufficient evidence may affect the JEP’s overall objective to seek truth for the victims.

Case 1 also had a particular approach to the investigation by deciding not to focus on the facts of the case, but on the “phenomena” derived from those facts. This focus on “phenomena” was justified by the “transitional nature” of the proceedings at this court. Under this model, individuals are accused in abstract terms of committing an international crime that was part of a “phenomenon”.

This “phenomena approach” to the investigation could lead to tensions with due process because it could hamper the right of the accused to be informed in detail of the nature, cause, and content of the charges brought against them, as defined in article 14 of the ICCPR. In other words, by focusing on “phenomena” the accused might be at risk of not being presented with the facts upon which the charges should be based. Furthermore, by looking into “phenomena” and not facts, the JEP might not fulfil its mandate to prosecute the gravest and most representative crimes. Instead, it could limit itself to a general description of the Colombian conflict; a task that seems more appropriate for the truth commission established in the Peace Agreement (Comisión para el Establecimiento de la Verdad, or CEV).

These issues, it must be said, were not present in the indictments in case 3. Judges here took a more traditional approach to criminal proceedings by having an active role in the investigation, relying on direct evidence for the most part, and focusing on the facts. In this case, 348 interviews (versiones voluntarias) were conducted in which witnesses and alleged perpetrators provided the JEP with direct evidence about the killing of civilians between 2002 and 2008 in what came to be known as falsos positivos. Even though the decisions mentioned “phenomena”, the charges were precise. They identified the alleged perpetrators, the direct victims, and the circumstances surrounding the alleged crimes.

Concluding remarks

This overview of longstanding and new challenges supports the claim that the Prosecutor’s decision to end the preliminary examination was premature. Not only the JEP’s progress is modest, but it is still struggling with government interference, a large jurisdictional scope, and a lack of a prosecution strategy. Furthermore, the indictments in cases 1 and 3 reveal issues with its understanding of sources of international criminal law and with how to conduct criminal investigations.

However, this does not mean that the ICC should immediately conclude that Colombia is unwilling or unable to prosecute Rome Statute crimes and therefore launch an investigation. Colombia’s efforts for peace and accountability are genuine and the challenges and issues at the JEP, while many, are surmountable. The upcoming elections may lead to a government committed to the implementation of the Peace Agreement. Moreover, the JEP can still define a cohesive prosecutorial strategy and systematically collect and analyse the vast amounts of information it has received.

Regarding the indictments, even though there are some concerns in case 1, case 3 has shown a better understanding of international criminal law both in the substance and the procedure. This led to the historical hearings of admission of guilt or reconocimiento for falsos positivos where perpetrators offered victims and society a complete and precise account of their crimes.

Following this trend, the decisions in other cases may rely on the national and international criminal law that is applicable at the time of the crimes, thus safeguarding the principle of legality. These decisions may also benefit from a more active judiciary conducting the investigation and ensuring that the charges are based on the facts and supported by direct evidence.

Overcoming these challenges would guarantee the rights of the accused in the proceedings and contribute to the JEP’s overall mission of bringing justice and truth to the victims and society at large.