Colombia, the ICC — and a Twist!

by Kevin Jon Heller

I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture.  Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):

In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.

Apparently Judge Garzon, now consulting with the ICC, agrees with me.  He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:

Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.

The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something – there will be claims and the court will have to say something.”

Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” – a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.

The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.

I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I.  (See, for example, this excellent article by Jennifer Easterday at Berkeley.)  To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.”  Here is the AMICC’s assessment:

The Prosecutor of the International Criminal Court, by pressuring Colombia through statements and visits, seems to have boosted Colombia’s historically ineffective justice system. The Colombian Supreme Court is making an unprecedented effort and has had success in bringing to justice those responsible for the worse atrocities against human rights. Although the UN and human rights NGOs continue to report crimes against humanity, for the first time in decades the Colombian judiciary appears to be an effective institution. Thus, under the complementarity principle, the ICC is unlikely to intervene because Colombia, at least for the time being, appears willing and able to hold accountable those who bear the ultimate responsibility for crimes under the Court’s jurisdiction.

Such stark disagreement between Colombia experts may explain the OTP’s reluctance to open a formal investigation.  In the end, though, the issue may turn out to be moot — because Colombia itself is now suggesting that the ICC should investigate crimes committed by FARC rebels allegedly based in Venezuela:

Colombia’s Prosecutor General Guillermo Mendoza Diago said Thursday that the Andean nation is considering whether to take evidence of numerous FARC and ELN camps in Venenzuela to the International Criminal Court (ICC), given that the guerrillas commit crimes against humanity and then seek refuge over the border.

“If we manage to establish that and we have information that the people who attack seek refuge in Venezuela and the authorities don’t do anything, but instead support them, then we would be able confirm that we could take the case to the International Criminal Court,” Mendoza said.

According to Mendoza, high-ranking Venezuelan officials, including Venezuelan President Hugo Chavez, could hypothetically be called to testify before the court.

“If the International Criminal Court prosecutor –  after we were to have presented the corresponding complaint, well founded in evidence  were to be able to establish that Venezuelan authorities were co-participants in these acts, they could all be called to respond,” Mendoza said.

The prosecutor general said that the Colombian government had handed him a file documenting at least 60 attacks against Colombians, committed by FARC guerrillas, who had then fled to Venezuela.

Mendoza is correct that the ICC could investigate FARC crimes committed in Colombia — but he needs to remember that states can only refer situations to the Court, not individual cases or groups of cases.  So if Colombia wants to refer FARC’s crimes, it will have to accept the possibility that it will end up under the OTP’s microscope, as well.

I, for one, would very much like that to happen.

http://opiniojuris.org/2010/08/04/colombia-the-icc-and-a-twist/

7 Responses

  1. Not going to happen. If nothing else, the United States have too much of a stake in Colombia (in the form of various naughty things they allegedly did there), and I don’t think anyone feels like picking a fight with the US over this.
    (Not to mention that, at this point in his career, Garzon’s advocacy feels distinctly like a kiss of death.)

  2. If they look at one and not the other it just reinforces the problem many Americans have with the ICC - one word: hypocrisy.

  3. @AdamR: In my experience, that is not the problem most Americans have with the ICC. The problem they tend to have is that it is conceivable that an American might end up in the dock some day. Hence the demands for special exceptions for US citizens (or at least US officials). When it comes to international law, Americans don’t tend to mind hypocricy very much, as long as they’re on the receiving end.

  4. Baltasar Garzón seems to gloss over the whole complementarity issue. Art. 17 does not measure complementarity according to the number of sentences. It is ridiculous to measure an effort to prosecute and punish in such a simplistic way. To quote Kai Ambos, the same unfair assessment could be made of the ICC itself. So far, it has been in place longer than the Justice and Peace Law, and so far it has managed to get zero convictions (and Lubanga is close to being effectively released).

    The article that you cite to is constructed from a fundamental confusion. Article 17 speaks about attempts to shield the criminals from liability. The article’s author tries to argue that, since the Justice and Peace Law was deliberately crafted to avoid ICC jurisdiction, then it is a bad faith attempt covered by that Art. 17 provision. Those are two completely different concepts, “shielding from liability” and “shielding from ICC prosecution”.

    The Justice and Peace Law does not shield individuals from liability, it only lowers their sentences subject to certain continuing requirements. The sentences are schokingly low when compared to the regular sentences in Colombian law, and shockingly average when compared to the ones handed down by the ad-hoc tribunals. So I don’t see any attempt to “shield from criminal liability”.

    The remaining point would be that the law was specifically drafted to ‘exploit’ the complementarity threshold of Article 17. But that is precisely what positive complementarity is about: setting a minimum standard for States to build from it. The job of the ICC Prosecutor is to encourage national prosecutions through the threat of ICC prosecutions, and it’s working in Colombia.

    Finally, no self-referral by Colombia will be forthcoming. The Prosecutor General seems to know nothing about the Rome Statute, but the Government in general will know better than to refer themselves to the ICC.

    This is just another attempt by Garzón to gain prominence in the international press. A serious assessment of complementarity in the Colombian situation by a Pre-Trial Chamber would prove him wrong.

  5. Guillermo is completely misrepresenting Easterday’s article.  She does not claim that “since the Justice and Peace Law was deliberately crafted to avoid ICC jurisdiction, then it is a bad faith attempt covered by that Art. 17 provision.”  She argues that although the Colombian government is entitled to argue that the JPL is an alternative to ICC prosecution, the JPL’s provisions — combined with deficiencies in the Colombian criminal justice system — do not withstand a complementarity analysis.

    It is perfectly fair to contest Easterday’s interpretation of Article 17.  Caricaturing it, however, is not.

  6. Kevin, we might have a different reading of Easterday’s argument. I might have oversimplified it. So let’s look at her conclusions at page 104:

    “In the case of Colombia, the sum total of the evidence suggesting Article 17 has been violated consists of the following:
    (i) There was explicit use of the Justice and Peace Law as a buffer against the ICC in negotiations between the AUC and the government;
    (ii) The law provides for minimum standards of soft punishment;
    (iii) There is a de facto exclusion of guerilla groups from the amnesty process;
    (iv) The application of the law violates Colombia’s Constitutional Court ruling on its constitutionality, in favor of leniency towards the paramilitaries;
    (v) There is strong evidence to show extensive control by the AUC of the government, even possibly the President;
    (vi) Many paramilitary leaders may avoid prosecution in Colombia through extradition to the U.S.; and
    (vii) There are potentially many government and military actors who are responsible for mass atrocities that may be granted impunity for their crimes.”

    In my opinion, point (i) is irrelevant. There is nothing in the Rome Statute that prevents a State from enacting provisions deliberately crafted to avoid ICC jurisdiction by holding criminal proceedings and imposing sentences. On the contrary, it is the gist of positive complementarity.

    Point (ii) would be far more relevant. But we must really ask ourselves whether the JPL is as soft as it seems at the outset. The way the JPL foresees it, most former combatants are set to be sentenced to the maximum amount permitted by Colombian law, which is 60 years. This is known as the ‘principal sentence’. Then given an eight-year ‘alternative sentence’, which will substitute the ‘principal sentence’, as long as a series of continuing requirements are fulfilled. This is a safeguard against continuing to command the criminal paramilitary structures from prison, and some leaders have already been excluded from the JPL framework due to their continued offences. I don’t see how this is automatically equivalent to an amnesty. International tribunals have given far softer sentences. I have never seen an accusation against the ICTY for, e.g. ‘granting an amnesty’ in favor of Biljana Plavsic.

    Point (iii) is again irrelevant. The decision to include a group in the JPL process is taken once an armed group chooses to demobilize. That decision has not been taken by guerrilla groups, so they cannot be included as a group. Individual FARC and ELN deserters, however, have been included in the JPL framework.

    Point (iv) remains to be seen. However, this is a mere violation of Colombian Constitutional law, which has nothing to do with international law. The Constitutional Court struck down a provision stating that time spent in the “zona de ubicación” during the peace negotiations would be credited as prison time already served. The government then said that this ruling would only have effects towards future situations. This is an application of fair trial rights on most-favorable law for the accused. This is a highly questionable decision, but it does not lead to complete impunity. It subtracts one or two years from the eight year alternative sentence.

    Point (v) is irrelevant. Yes, the AUC probably controls much of the Congress and the Government. But its high-ranking members are in any event going through a process which will lead to criminal liability. So no breach of complementarity there.

    Point (vii) is completely speculative and at odds with the ongoing reality in Colombia. The judicial system has taken a very tough stance against members of the military allegedly responsible for extrajudicial killings.

    The only relevant point would be point (vi) on leaders who would avoid prosecution by extradition to the US. This was initially seen as a fatal blow to the whole process.

    However, the decision was made to keep them in the JPL proceedings, having them participate via videolink from their US prisons. This will probably lead to sentences against them, which will be waiting for them in Colombia once they serve their time for drug crimes in the US. 

    That’s my take on Easterday’s argument.

    Garzón’s argument is of a completely different nature. His point is that there has been undue delay in the process, without even stopping to mention the Art. 17 standard.

    The legitimacy of the ICC depends on a strict application of the Rome Statute’s provisions on complementarity. I hope the OTP does not take decisions on this issue as lightly as Garzón seems to suggest. The assessment of the situation in Colombia is much more complex than simply asserting that the JPL is a ‘cloaked amnesty’ of sorts. A wrong decision on this would be discouraging for a country which is seriously trying to undertake prosecutions, against individuals whose custody would not have been achieved had it not been for the JPL and its ‘soft’ standards of criminal justice.

  7. I don’t believe that there’s an entire misrepresentation of Easterday’s article, because it’s clear from the text that sometimes the author uses the concept of avoiding criminal liability interchangeably with the concept of avoiding ICC jurisdiction. Take for instance this passage of the introduction: “This paper focuses on the political context in which Colombia has deliberately crafted mechanisms of transitional justice to avoid ICC jurisdiction.” This is quite literally what you are saying she’s not doing…

    However, it is clear that her main argument rests upon two conclusions: (1) Colombia is unable to prosecute domestically; and (2) Colombia is unwilling to do so (and by saying “unwilling” she actually accuses the State of bad faith when implementing domestic mechanisms of transitional justice). Herein lies my general disagreement.
    As for the application of Article 17, I find it unfortunate that the Rome Statue makes specific reference to the criteria of “shielding” from ICC jurisdiction as to determine whether there is unwillingness from a State. Quite frankly, the problem is not the shielding per se – I would find it entirely desirable that a State shields ICC jurisdiction by actually prosecuting domestic crimes – the problem only exists if “shielding” is understood to encompass the avoidance of criminal liability in general, not of criminal prosecution in the ICC. That’s the whole point of positive complementarity… The pressure put onto States to prosecute, where the pressure is precisely the exercise of jurisdiction. I find that this article helps blur the line which I dislike of Easterday’s article.

    Having said that, I don’t have a problem with the shielding of ICC jurisdiction so long it’s done in an honest fashion (and to remove any vagueness of that statement, what I mean by honest fashion is “coherent with international standards of justice”). In that sense, taking into account that there is indeed a legal framework which attempts to prosecute domestic criminals, one must demonstrate that this legal framework is insufficient.

    However, the author goes much farther than that. She states that she will be able to “demonstrate how the Colombian government has adopted the rhetoric of transitional justice in an effort to avoid ICC investigation into its state-sponsored human rights abuses”. Having already said that an effort to avoid ICC investigation is not per se a problem, but only if that attempt fails to meet legal international standards, she must prove how this is actually the case.

    This is where I’m entirely unconvinced. Her evidence to demonstrate that the Colombian government has willingly shielded paramilitaries, and how the links between the government and the illegal activities are beyond demonstrated, are not sufficient for me to conclude that the JPL is a deliberate attempt to aid the AUC. In fact, she goes as far as to say that: “This extensive paramilitary-government collusion supports the argument that the JPL was passed as an attempt to allow paramilitaries to “shelter behind a State run by themselves or their cronies” or that “There is strong evidence to show extensive control by the AUC of the government, even possibly the President”. In all honesty, I don’t find these arguments substantiated at all in her article. They seem to be, in fact, fundamental premises.

    In conclusion, I think it’s a mistake to understand article 17(2)(a) so literally, as such literal interpretation may lead to deviate the Court from its real use (in my opinion): to put pressure upon States to prosecute domestically. I don’t think that shielding ICC jurisdiction and shielding from criminal liability are synonymous, as the author tries to argue (perhaps only for this particular case), and I am not entirely convinced that the Colombian government has purposefully enacted the JPL to aid its “cronies”.
    Having said that, as a Colombian, I would love for the ICC to open the Colombian situation and to be honest, I have not decided on whether I think that jurisdiction/admissibility requirements of the Rome Statute are met. I just don’t really agree with Easterday’s approach.

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