Transitional Injustice? Concerns over Judicial Accountability at Colombia’s Special Jurisdiction for Peace

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Colombia’s Special Jurisdiction for Peace (“JEP,” for its acronym in Spanish) has drawn considerable attention for its attempt to balance calls for retribution with a restorative approach aimed at peacebuilding. Despite a myriad of challenges, the JEP has made significant progress in the investigation of hostage-taking by former Revolutionary Armed Forces of Colombia – Popular Army (“FARC-EP,” for its acronym in Spanish) rebels and “false positives” killings by members of the Colombian armed forces. Unfortunately, its judges are also showing worrying signs of judicial unaccountability. These include violating the principle of legality, preventing parties and participants from challenging its decisions, and threatening judicial impartiality.

Violating the Principle of Legality

Under Interim Article 5 of the Colombian Constitution, as amended by Constitutional Act 01 of 2017, the JEP has jurisdiction over the crimes that were committed before 1 December 2016 in the context of the conflict with the FARC-EP, which arguably began in the 1960s (Pp. 121 et seq.).

To face this massive legal challenge, the JEP may apply “the Colombian Penal Code and/or the norms of international law regarding human rights (IHRL), international humanitarian law (IHL) or international criminal law (ICL).” This sources regime goes beyond Article 9 of the American Convention on Human Rights (“ACHR”), which only allows for the punishment of conduct that was previously criminalised by Congress (Paras. 218 – 221). Nevertheless, one could argue that its adoption was necessary to guarantee the “fair labelling” of serious conduct and offset decades of impunity. Moreover, Article 15(2) of the International Covenant on Civil and Political Rights permits the prosecution of conduct that “was criminal according to the general principles of law recognized by the community of nations” at its time of commission.

However, the JEP should identify the international law applicable to each incident and demonstrate that it was accessible and foreseeable. Only then could it punish its violation. Unfortunately, the Acknowledgment Panel (“Panel”) has failed to do so. This section will focus on the threats posed by one of its landmark decisions to the principle of legality by: (i) applying the Rome Statute (“RSt”) retroactively and (ii) ignoring the accessibility and foreseeability of the mode of liability (“MoL”) employed.

Applying the RSt Retroactively

Decision 019 of 2021 indicted eight former members of the FARC-EP’s secretariat for three patterns of hostage-taking implemented between 1982 and 2012 to finance the FARC-EP’s armed rebellion (Paras. 263 – 284), force humanitarian exchanges (Paras. 379 – 394), and exercise social control (Paras. 446 – 461). The Panel qualified the underlying conduct as war crimes and crimes against humanity under the RSt to preclude amnesties (Paras. 695 – 696) and issue charges against their perpetrators (Paras. 706 – 765 and Pp. 317 – 322).

Mindful of the tension that applying the RSt retroactively would create with the principle of legality, the Panel found that this decision tracked an “international anti-impunity consensus,” (Para. 696) which allowed for the legal characterisation of the facts under ICL. In its view, the case law of the Inter-American Court of Human Rights barred perpetrators from claiming the lack of domestic incorporation of core crimes to avoid prosecution (Para. 700) and prohibited the concession of amnesties for those crimes (Para. 697). Thus, it allegedly introduced a degree of flexibility to the application of the principle of legality. However, those judgments did not deal with the retroactive application of criminal law. They merely allowed direct recourse to contemporaneous rules of ICL to punish atrocity crimes.

The Panel also misconstrued the Lubanga Confirmation of Charges Decision. It argued that Pre-Trial Chamber (“PTC”) I of the International Criminal Court (“ICC”) rejected the accused’s mistake of law defence because “even before the entry into force of the [RSt], child recruitment was forbidden under international law, which made its prohibition foreseeable at the time of commission of the acts.” (Para. 698) In fact, the PTC held that “the Defence is not relying on the principle of legality, but on the possibility of excluding criminal responsibility on account of a mistake of the law.” (Para. 301) Moreover, PTC-I found that “the DRC ratified the Statute (…) a few months before the period covered by the Prosecution charging document.” (Para. 307) Thus, it upheld the principle of legality.

The Panel could have had recourse to the Nuremberg principles, the work of the International Law Commission on the Draft Code of Offences Against the Security and Peace of Mankind or its own examination of customary ICL. Instead, on the basis of the arguments surveyed above, it decided to apply the RSt – which was only signed in 1998 and entered into force in 2002 – to facts that occurred well before it was even drafted.

Ignoring the Foreseeability and Accessibility of a MoL

The Panel’s breach of the principle of legality was compounded by its decision to treat former secretariat commanders as indirect co-perpetrators under article 25(3)(a) of the RSt (Paras. 771 – 791).

The Panel relied on a complex web of domestic statutes and case law, as well as findings from international criminal tribunals, to offer a problematic interpretation of this MoL.

Indeed, it cited the Supreme Court’s 2009 findings in the Macayepo massacre case to “attribute liability to an indirect perpetrator for the conduct of a criminally responsible instrument.” (Para. 779) It then made a cursory reference to the confirmation of charges decisions against Katanga (Para. 783) and Lubanga (Para. 788), along with several Supreme Court judgments recognising co-perpetration as a MoL under the Colombian Penal Code of 2000 (Paras. 785 – 787).

This practice squarely contradicts the holding by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in Multinović et al. that the judge must be “satisfied the crime or the form of liability with which an accused is charged was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time.” (Para. 38) Certainly, it is difficult to argue that the MoL was sufficiently accessible and foreseeable because the Panel grounded it on a mixture of municipal statutes and case law with the ICC’s hotly debated embrace of indirect co-perpetration (see: Judge Fulford’s separate opinion in Lubanga and Judge Van den Wyngaert’s concurring opinion in Ngudjolo). Moreover, those authorities were adopted years after the commission of the bulk of the crimes under the Panel’s investigation.

Furthermore, the Panel misconstrued the common plan requirement by attributing all patterns of hostage-taking to commanders who were appointed to the secretariat at different times and did not always participate in the adoption of the relevant policies. Despite having found that the FARC-EP was a single “hierarchical military organisation” that was “led and controlled by its commanders,” (Para. 113) the Panel also held that accused persons were indirect co-perpetrators. Hence, it ignored that the MoL aims to mutually attribute the essential contributions made to the common plan by co-perpetrators acting through distinct organised apparatuses of power under their control.

Contrary to the Panel’s preferred MoL, its findings would indicate that at least some accused individuals were merely complying with binding policies adopted by others. If the Panel wanted to hold them accountable for their subordinates’ actions, it could have considered several alternatives, such as joint criminal enterprise, parallel structures of perpetration or participation in each unit of the FARC-EP, or the mere ordering of crimes. Instead, it chose to violate the principle of legality.

Preventing Legal Challenges to the Panel’s Decisions

Recently, the Appeals Chamber (“Chamber”) issued an interpretive judgment that curtailed the parties and participants’ rights to due process of law, under Article 21 of Act 1957 of 2019, and to file requests for reconsideration or appeals against the Panel’s decisions, pursuant to articles 12 and 13 of Act 1922 of 2018.

Article 12 of Act 1922 of 2018 foresees the admissibility of requests for reconsideration against “all the decisions issued by the Panels and Chambers of the [JEP],” and Article 13 authorises appeals against, inter alia, “1. the decision defining the jurisdiction of the JEP [and] 5. the decisions on case selection.” Nevertheless, the Chamber held that:

[…] As a general rule, the decisions rendered by the Panel in the discharge of its special functions in the frame of the dialogical due process – such as the decision to open a macro-case, the decision on the legal characterisation of facts, and the issuance of its conclusions – are not subject to requests for reconsideration (…) the decisions rendered by the Panel are only subject to appeal if it is foreseen in a specific provision. However, the appeal is only admissible if, additionally, one of two conditions are met: the decision brings the process of attribution and acknowledgment of responsibilities that is conducted before the Panel to an end, and the appeal does not contradict the dialogical nature of the proceedings (Pp. 88 – 89). 

The importance of those decisions cannot be overstated. They mark key stages of the proceedings. Certainly, the opening of a macro-case implies that the JEP has established its jurisdiction over a set of facts that satisfy the prioritisation criteria and may, therefore, investigate them under Interim Article 7 of the Constitution and Article 19 of Act 1957 of 2019. Subsequently, the legal characterisation of the facts marks the first communication of the charges brought forward by the Panel. Finally, the Panel’s conclusions include the identification of the gravest and most representative crimes, their legal characterisation and attribution, as well as an assessment of the alleged perpetrator’s contributions to the truth. They also recommend the imposition of certain restorative penalties.

Parties and participants should be able to challenge those decisions, both horizontally and vertically, if they infringe upon their rights. Yet, in a departure from the JEP’s statutory framework, the Chamber curtailed that possibility referencing the Panel’s “special nature.”

According to the Chamber, due to the Panel’s limited mandate, the dialogic character of its proceedings, and its focus on investigating macro-cases rather than isolated crimes, it should not “irreflexively” copy the procedures of an ordinary tribunal. Rather than filing requests for reconsideration, parties and participants should seek “dialogic interactions” with the judges (Para. 103). However, the Chamber failed to define them, holding instead that “Due to the restorative paradigm in which those spaces for interaction are embedded, it is not possible to describe all their traits beforehand.” (Para. 108)

Crucially, they do not represent a legal challenge to the Panel’s decisions. On the contrary:

[…] it would be possible not to request the reconsideration of the decision, but to formulate ideas, opinions or feelings or emotions about the conduct of proceedings, for instance (…) the judge is not trapped in the binary perspective of reconsidering their decision or not, neither must they respond to the observations one by one or in general (Paras. 108 – 109).

The Chamber also discarded the need for an appeal of the Panel’s selection of individuals for prosecution. This is significant because the Panel must focus on the individuals bearing the most responsibility for the gravest crimes, either referring them to the JEP’s Investigation and Prosecution Unit if they fail to acknowledge the truth or submitting them “to the [First Instance Chamber for Cases of Acknowledgment of Truth and Responsibility] if they have been faithful to the principles of the transition.” (Para. 137) Consequently, the selection decision subjects them to lengthy proceedings that should only be activated if those conditions are met.

Regardless, the Chamber held that such decision was not impugnable because it did not put an end to the proceedings, but connected the stages of “investigation” and “trial” (Para. 141). Therefore, it would be subject to the judicial review of either of the First Instance Chambers (Para. 143). In the Chamber’s opinion, their timely intervention, “with full respect for due process of law,” would suffice to “correct potential mistakes.” (Ibid.)

Additionally, the Chamber found that its own “premature intervention” would “crystallise the inherently evolutive and collaborative process for the reconstruction of the truth – which is occasionally diverse and complex – and responsibility, in the face of the inescapable authority with which [it] would make a pronouncement.” (Para. 144) Thus, in its view, an appeal would “threaten the purposes of the JEP, including the uncovering of the whole truth and the centrality of the victims.” (Ibid.)

Finally, the Chamber held that entertaining appeals at this juncture would:

[…] dilate an inherently intricate proceeding, which precedes lengthy stages in themselves. The JEP’s strict temporality cannot stand the massive and indiscriminate filing of requests for review, less so if they are vertical, because, generally, those are more time-consuming (Para. 145).

However, it seems contradictory to uphold proceedings that should not have taken place on the grounds that they must be expeditious. In that scenario, it would be more reasonable to request a swift determination from the Chamber instead of submitting other judges, parties, and participants to a protracted and ultimately unsuccessful trial.

Overall, the Chamber’s approach prioritises the streamlining of proceedings over their legal and factual correctness. This threatens the rights to access justice, a fair and expeditious trial, and an effective remedy against due process violations under articles 8 and 25 of the ACHR.

Threatening Judicial Impartiality

Lastly, two grave threats to judicial impartiality are brewing at the JEP.

Firstly, since the issuance of the JEP’s first regulations in 2018, its judges adopted a “mobility” scheme that facilitates staff transfers to organs with pressing operational needs. Under its guise, judges of both First Instance Chambers and even assistant judges of the Chamber have acted as investigative judges of the Panel. They hold that this will not affect their chambers’ impartiality because they will recuse themselves from any cases they investigated. Yet it is difficult to imagine that their colleagues will be able to ignore their conclusions when such cases move to the trial or appeal stages.

Secondly, the JEP’s president has made claims that could have an impact on the presumption of innocence of people who have not yet been sentenced. In one instance, he stated that the FARC-EP “did not make mistakes, but committed war crimes and crimes against humanity.” He later asserted that “false positives” killings were not isolated situations, but “organised, planned, and carefully executed” actions.

Observers may recall that former ICTY Judge Harhoff was disqualified for his less conspicuous decision to circulate a private letter criticising a shift in the tribunal’s practice. This, in the majority’s view, “would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction”, thus rebutting “the presumption of impartiality” (Para. 13).

Concluding Remarks

In its 2012 report, then Special Rapporteur Pablo de Greiff highlighted the role that transitional justice could play in the recognition of victims, the promotion of public trust, and the strengthening of the rule of law. None of that is possible if justice is not done and seen to be done. Thus, the importance of a competent and accountable judiciary during times of transition cannot be stressed enough. Faced with the concerning signs of disregard for the law presented in this article, the JEP would be well-advised to conduct its own Independent Expert Review before it is too late.

Note: The translations from Spanish into English were provided by the author.

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Comments

Susan Kemp says

October 15, 2022

Thank you for an excellent informative piece. These are indeed worrying developments from a due process point of view. What will be the response domestically and internationally?

By the way I suspect that these problems as not entirely surprising given some unfortunate tendencies in the "TJ" field over the last decade or so. One is to divide responses to mass atrocity according to a binary of "retributive" vs "restorative" with all criminal accountability measures labelled retributive regardless of their particular philosophical justifications and policy aims in the country context. Another is to elevate truth seeking as the primary goal of any and all measures including trials, due to the peacemaking/keeping context. It is then an easier step intellectually and politically, to dilute basic due process protections and present this as a necessary means to achieve peace.

Fabián Raimondo says

November 7, 2022

Hola Santiago.
Me gustaría conversar contigo acerca de la jurisprudencia de JEP. En caso de interesarte, puedes escribirme a fabian. raimondo@maastrichtuniversity.nl y combinamos una charla. Saludos cordiales