EL ESPECTADOR, October 30, 2021
(Translated by Eunice Gibson, CSN Volunteer Translator)
The Director of the Americas division of Human Rights Watch (HRW) talked with EL ESPECTADOR recently about the agreement signed between the Iván Duque government and the Prosecution Office of the International Criminal Court (ICC), closing the preliminary investigation of serious human rights violations in this country since 2004. He calls it a setback and mentions possible resistance by those being investigated to collaborate with the JEP.
Last Thursday, October 28, in the Presidential Palace, President Iván Duque presented the government’s commitment to fortify the judicial branch, particularly the Special Jurisdiction for Peace (JEP), with the objective of avoiding the re-opening of the ICC evaluation of Colombia for serious human rights violations.
The Chief Prosecutor at the International Criminal Court), Karim Khan, who was visiting Colombia last week, has decided to close the preliminary investigation against Colombia for war crimes and serious violations of human rights, an investigation that the ICC had commenced in 2004.
After that momentous announcement, several critical voices were raised with respect to the decision by the high official of the international agency. Among those was José Miguel Vivanco, Americas Director of Human Rights Watch. The spokesman of the non-governmental human rights organization pointed out that, with this determination, for example, generals that are being investigated by the JEP will be reluctant to collaborate with the JEP when the time comes.
I think that Chief Prosecutor Khan has made a serious mistake. I believe that Colombia’s transitional justice system—in spite of important recent advances—is still very fragile. There are a number of initiatives that seek to reform the Special Jurisdiction for Peace in order to guarantee the impunity of the military and the Jurisdiction is facing some serious obstacles, such as threats to those who have submitted to its jurisdiction. Keeping open the preliminary investigation, and thus the threat that the ICC could open a formal investigation, would have been useful in this case to assist the JEP and judicial agencies in Colombia to carry out their work more effectively.
Chief Prosecutor Bensouda, Chief Prosecutor Khan’s predecessor, had proposed creating a system of goals and objectives that would have to be carried out to describe the legal situation in Colombia. Under that proposal, if Colombia met the goals, the ICC prosecutors would close the preliminary investigation. On the contrary, if there were to be a serious deterioration (for example, if they would dismantle the JEP) the prosecutors would open a formal investigation. I think it was a much more realistic system and one that would be useful for achieving justice at the local level. The Chief Prosecutor’s decision was clearly a setback.
What does the closure of the investigation mean for the victims? Who is benefited by closing the investigation?
I don’t believe this benefits the victims. I think that many more of those who have submitted to the JEP’s jurisdiction (for example, generals being investigated for false positives) are now going to be much more reluctant to cooperate with the JEP, because the threat of an ICC investigation of them is much more distant and uncertain now that the preliminary investigation has been closed.
How do you see the agreement that the government signed with the ICC?
How obligated do you think the government will feel to support and protect the work of the JEP?
It’s positive that the agreement includes commitments by the government to protect the work of the JEP. It’s certainly better that the investigation was closed with these commitments than without them. Nevertheless, I don’t think the closure of the preliminary investigation was necessary. It would have been more desirable if the Chief Prosecutor had clearly stated that if the government and the authorities don’t meet the prearranged goals and objectives, the Chief Prosecutor would open a formal investigation. That would have been a forceful and a credible threat, and I fear that that was what was needed at this moment. We are nearing an election in which dismantling the JEP is certain to be proposed, and we don’t know what the political context will be in the next year. It would have been much more sensible to keep the preliminary investigation open until the uncertain political context, which makes it difficult for the JEP to work, could be clarified and meanwhile push to consolidate the JEP’s progress, so some results are reached in the ordinary legal system, for example, with the financing of the paramilitaries and also with sexual violence.
Regarding sexual violence specifically, how do you see the situation, keeping in mind that the JEP does not yet have a macrocase for such crimes?
The progress in guaranteeing justice in cases of sexual violence committed during the armed conflict has been scarce. I believe that before closing the preliminary investigation, Chief Prosecutor Khan ought to have demanded more progress in these terrible crimes committed during the armed conflict. They constitute war crimes and crimes against humanity, committed by the various actors in the armed conflict. This is doubtless one of the aspects where there is the greatest probability of impunity, and pressure from the ICC prosecutors would have been crucial.
How can you explain what the ICC did when it opened the preliminary investigation in 2004? Many are criticizing that it didn’t do any good, but on the contrary, that closing it is a sign of progress.
I think that the ICC prosecutors could have done much more to seek justice in Colombia in those years. But I also think that the existence of this investigation has had a certain positive impact. The progress that has been made against low and middle-ranking soldiers for false positives can be explained in good measure by the international pressure, including the pressure from the ICC. Besides, the ICC prosecutors have helped to correct and impede initiatives that could have generated greater impunity, such as the Legal Framework for Peace in 2012, the definition of “command responsibility” ad hoc for the military in the Peace Agreement, and, in their most recent form, attempts by the Democratic Center Party to reform the JEP.
The preliminary investigation served, not just to impede initiatives, but also to pressure those who had submitted to JEP jurisdiction to cooperate. Unfortunately, with the closing of the preliminary investigation, that pressure will vanish. Claiming that closing it is a sign of progress for the victims, using a self-congratulatory, oblivious to the facts, is nothing but demagogy.
What do you think are the biggest problems that Colombia will have after the decision to close the preliminary investigation?
The scrutiny on Colombia by the ICC prosecutors will doubtless be less, and that will bring a greater risk of impunity. In the current circumstances, we have no other option but to use the agreement—even though it looks to us like a consolation prize—to monitor the record of the national authorities and demand that they comply completely and in good faith. We will see whether Chief Prosecutor Khan, for his part, is disposed to follow the country’s situation closely and insist vigorously on compliance with the agreement. The first step would be to demand that Duque withdraw from the Congress his bills to reform the JEP, which bills are intended to guarantee impunity, and which are being supported and promoted by supporters of the Duque administration in the Congress.