By Sergio Gómez Maseri, EL TIEMPO, October 14, 2021
(Translated by Eunice Gibson, CSN Volunteer Translator)
In a letter to the new ICC Prosecutor, the organization claims that there are efforts going on that would weaken the work of the JEP.
In a new letter to the Prosecutor at the International Criminal Court (CPI in Spanish), the United States organization Human Rights Watch (HRW) asked that the Court maintain its preliminary investigation of the war crimes and crimes against humanity that were committed in Colombia, and continue its evaluation of the efforts of Colombia’s legal system to guarantee that those crimes don’t end up in impunity.
“It would be premature and counterproductive to the objective of maintaining access to justice for the victims of serious international crimes that its office has analyzed ever since it opened its investigation in 2004. We urge that this preliminary examination be maintained and that your efforts with authorities, victims associations, their representatives, and other civil organizations be intensified, in order to support genuine proceedings at the national level,” say José Miguel Vivanco, Americas Director of HRW, and Elizabeth Evenson, Co-Director of the international justice program for the organization.
The letter is relevant because of the upcoming visit to Colombia of the ICC Prosecutor, Karim Khan, at the end of this month.
In 2004, the ICC opened a preliminary investigation of Colombia to determine if such crimes had been committed.
Still more important, it must establish whether the Colombian legal system has been investigating and penalizing those who were responsible. The next step forward would be to determine whether the ICC should open a formal investigation and, as a complementary justice agency, take over the trials when it believes that the government has failed to carry out its international commitments.
In June of 2021, before leaving her post, the prior ICC Prosecutor, Fatou Bensouda, decided to open a period of consultation to develop a frame of reference that would decide if the Court should open a formal investigation, or close its preliminary investigation, which has now been going on for 15 years.
Since Khan has taken over as Prosecutor, there is a lot of uncertainty about the direction the Colombian case will take during his term.
But in the letter, HRW tells the Prosecutor that new developments in Colombia show that the investigation needs to remain open.
According to the organization, since the first ICC report in December 2020, the Special Jurisdiction for Peace (JEP) has taken important steps to file charges against 26 individuals, including against one general and several colonels, as well as against eight former members, high officials, of the FARC.
Even so, maintains HRW, there has been little progress in other areas, such as gender and sexual crimes, and the promotion of paramilitary groups.
In addition, states HRW, there is a delicate question of what kind of punishment they will receive in case they are convicted, and if the penalties will include effective restrictions on the defendants’ liberty as required by the international standards that the ICC upholds.
More than that, according to HRW, recent declarations by politicians in the country have indicated that, without the lens of the ICC, Colombia may take steps that lead to impunity.
In spite of its progress, or perhaps because of it, the transitional justice system remains fragile. Former President Álvaro Uribe, the mentor of the current President, Iván Duque, has recently proposed an amnesty, something that was partly supported by the leader of the opposition, Gustavo Petro, who leads in the polls for the 2022 election. These proposals are part of the same pattern that the government party, the Democratic Center, uses to delegitimize the work of the JEP. That includes vetoing legislation that would be critical for its functioning, proposed reforms to undermine the work of the transitional justice system, and making statements that seem directed at the privacy of the JEP and to call its decisions into question,” states the HRW letter.
Consequently, they add, the maintenance of the preliminary investigation of Colombia is necessary to safeguard the work of the JEP, and avoid having the many crimes that were committed during the years of conflict remain unpunished.