(Translated by Eunice Gibson, CSN Volunteer Translator)
After her visit to Colombia this past September…
By El Espectador (Colombia), October 20, 2017
In a 22-page document, sent to the Constitutional Court this past October 18, Fatou Bensouda explained the points in the JEP legislation that could lead to impunity.
The Chief Prosecutor for the International Criminal Court [CPI in Spanish], Fatou Bensouda, received a special request from the Constitutional Court last September 11, the day on which she began her official visit to Colombia: send an opinion on the legislation passed by Congress on the Special Jurisdiction for Peace [JEP in Spanish]. That opinion has now been furnished to the Court and, in general, it is not favorable, either on the concept of the responsibility of those who were in command [of the Colombian military during the conflict], or on the characterization of “systematic” as applied to judgments on those who committed serious crimes. All in all, what Bensouda points out is that the efforts of the country to establish the peace could be thwarted if, through the justice system, those most responsible will be able to evade their responsibilities (You might be interested in reading: “La fiscal de la Corte Penal Internacional ya está en Colombia”)
“A tribunal that applies this article (on responsibility of those in command) of Legislative Act 01, as it is now written, could find itself impotent to carry out customary international law with respect to military commanders (. . .) This means that the individuals with the effective capacity to prevent or punish the crimes of their subordinates could go unpunished,” states the 22-page document, obtained by El Espectador. For the Chief Prosecutor for the CPI, “the definition of command responsibility adopted [in the legislation] departs substantially from that contemplated in international law and from the Statute of Rome. Consequently, it could frustrate the efforts made by Colombia to comply with its duty to investigate and judge international crimes.”
The CPI’s Chief Prosecutor mentioned another sensitive point about the JEP: the benefits that those who have participated in crimes against humanity might receive. In this aspect, said Bensouda, without beating around the bush, the agreement between the government and the FARC is ambiguous and mistaken, because the Agreement states that in order to prosecute criminally those who have committed this kind of action, prosecutors have to prove that they were committed in a manner that was “systematic”. And that, according to the document, which is now in the hands of the Constitutional Court, “could lead to rendering amnesties or other similar measures for individuals responsible for war crimes that, even though not committed in systematic form, could still be covered by the Jurisdiction of the CPI.” (See also: “Así funcionará la Justicia para la Paz”)
In the view of the Chief Prosecutor, the country must take special care with the form in which it plans to pardon or grant amnesty to those who took part in the war; because [the legislation] demands proof that a crime was systematic, it might open a path to impunity in cases in which there really were serious war crimes, such as genocide or crimes against humanity. According to the CPI, the criteria for identifying infractions that are serious ought rather to be the responsibility of the justices in the JEP and not created by a legislative framework. In addition, she proposes that “other relevant aspects for evaluating the seriousness of the crimes, such as their nature, the form of their commission, and their impact on the victims” be kept in mind.
If the Constitutional Court should approve the JEP law, the CPI’s Chief Prosecutor explains, those cases could end up being studied by the international tribunal, because Colombia might be violating rules of international law, and that would go, without any doubt, against the purpose of the Statute of Rome: to bring to an end impunity for the most serious crimes. On that point in the debate, Bensouda recalls that, according to the Amnesty Law, to establish those that are “serious” acts, it is necessary to yield to what is set forth in International Humanitarian Law [DIH in Spanish]. “This definition (of serious crimes) disregards other factors that are of primary importance for determining the seriousness of a crime, such as its nature, method of commission, and impact,” warns the CPI.
Another of Bensouda’s concerns about the Legislative Act is the ambiguity in determining if a person has participated in an active or definite way in the commission of serious crimes. According to the document she sent to the Constitutional Court, this lack of clarity could lead to “granting mechanisms for special treatment, such as relinquishment of criminal prosecution of individuals who might have had a decisive role.” The words also could be read so that so-called responsible third parties who had contributed in a direct or indirect manner to the commission of a crime, without being determinative participants, might also be benefited. “As to the responsibility for complicity, it is enough when a person furnishes practical assistance, encouragement or moral support that has a substantial effect on the perpetration of the crimes,” she explains (More information here: “Así van las cuentas de las amnistias y beneficios otorgados por la JEP”).
Bensouda says that even though the measure is designed to exclude those who had a “peripheral” role in the crimes, to avoid impunity for those “most responsible”, the language as it is written in Article 16 of the Legislative Act could be understood in a different manner and have the opposite result: “An overly broad interpretation of the criteria, which would be incompatible with international law, could bring a generalized amnesty for third parties who are responsible for crimes under the CPI, including individuals who might have carried out a decisive role by omission.” She concluded: “For example, if a private business were to finance an armed group involved in the commission of crimes, it is irrelevant if the economic support were specifically directed at the commission of crimes or was intended for the survival of the group”.
That means, according to the Chief Prosecutor, that the Legislative Act disregards what international law says about the similarity of responsibility for omission and for commission. “Given that the omissions could be equally serious, this limitation would seem unreasonable,” says Bensouda, who also criticizes the form in which the Act establishes that a person had a determining role in a crime. The Chief Prosecutor says that participation must meet the parameters of being effective and decisive: “The correct interpretation of those expressions will be of great importance for determining the reach of the special benefits and the consistency of the JEP with international law” (You may also be interested in: “Las críticas a la Jurisdicción Especial de Paz).
The last point in the letter from the Chief Prosecutor of the CPI speaks of the effective restriction of rights and liberties. That is to say, what sanctions will be imposed in the JEP? Bensouda believes that, even though the Statute of Rome does not indicate how long the sanctions imposed must last, they must be compatible with its principles, because a total suspension of punishment would prevent the punishment of those most responsible. For the Chief Prosecutor, there would have to be consideration of other factors at the time of imposing a sanction that does not include deprivation of liberty because it is not enough that “the genuine intention” of the person found guilty is to answer to the law, as is set forth in the Legislative Act. In the letter, she proposes considering the relation of the penalty to the seriousness of the crime and the degree of the actor’s responsibility.
This is not the first time that Bensouda has called attention to possible problems that might be presented by the JEP. In February of this year she sent a report to the government in which she stated specifically that her office would be prepared to investigate high-ranking Army officers if they were not called to answer to the Special Justice for Peace (JEP) for the cases of extrajudicial executions. The names of those mentioned were published in the edition of last July 9 in the pages of El Espectador. Among them are: Generals Mario Montoya (retired), Jaime Lasprilla, Oscar González, Henry Torres Escalante, Luís Píco Hernández, Paulino Coronado, and José Joaquín Cortés.
The letter from the Chief Prosecutor of the CPI shows that Bensouda is keeping an eye on the JEP. The five items that the Chief Prosecutor pointed out are recommendations that remain in the hands of the Justices of the Constitutional Court who will define the future of the Legislative Act, the axis of the Peace Agreement between the government and the Farc. What they decide within the full court in the next few weeks will determine the implementation of what has been agreed upon as well as making possible any attempt to set Colombia on a path toward a transitional legal system that will allow a process of truth, reparation, and no repetition after five decades of war.
Editor’s note: The Colombian Supreme Court is currently considering the JEP.