VI. International Legal Standards
Victims Rights to Truth, Justice, and Non-Repetition of Abuses
International law provides that victims of violations of international human rights and international humanitarian law have, among other rights, the rights to justice, truth, and to non-repetition of abuses.
The Right to Justice
International law requires states to investigate, prosecute, and sanction those who commit or order the commission of crimes against humanity and other grave international human rights and humanitarian law violations.440 The Inter-American Court of Human Rights has repeatedly stated that the right to justice is not fulfilled solely through the initiation of domestic criminal proceedings unless the state can guarantee, in a reasonable time, the rights of the presumed victims or their families by doing all that is necessary to uncover the truth and to sanction those responsible.441
The International Covenant on Civil and Political Rights (ICCPR) establishes the right to an effective remedy for violations of rights protected there under.442 As explained by the Human Rights Committee, the United Nations body of experts that monitors compliance with the ICCPR, under article 2(3) of the ICCPR a state has duties to investigate and bring to justice those responsible for violations of rights, and a states failure to investigate or to bring to justice those responsible can give rise to an ICCPR violation separate from violating the right to an effective remedy.443 The Committee adds that impunity, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations.444 As a result, where public officials or State agents have committed violations of the Covenant rights the States Parties concerned may not relieve perpetrators from personal responsibility .445
The UN Updated Principles to Combat Impunity, which constitute authoritative guidelines representing prevailing trends in international law and practice, and reflect the best practice of states, describe the duties of states regarding the right to justice. They provide that states shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.446 The Principles note that these obligations apply even when the states objective is to foster peace or reconciliation.447 A state must not abuse procedural rules to avoid compliance with these duties.448
The right to justice also entails that states have an obligation to effectively sanction perpetrators of serious international human rights and humanitarian law violations. The Inter-American Court of Human Rights has repeatedly identified the states duty to sanction as a requirement without which the right to justice cannot be met.449 The UNs Updated Principles to Combat Impunity also note that states should ensure that those responsible for serious crimes under international law are prosecuted, tried and duly punished.450
The right to justice also entails that sentencing for violations of international human rights and humanitarian law must be proportionate to the gravity of the crime. The Convention Against Torture notes that crimes under the convention should be punishable by appropriate penalties which take into account their grave nature.451 Similarly, the Rome Statute of the International Criminal Court, whose jurisdiction includes cases involving crimes against humanity and to which Colombia is a state party, provides that in determining a sentence, the Court shall take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.452 The statutes of other international and hybrid international-national criminal tribunals that prosecute serious crimes under international law, including crimes against humanity, have similar provisions.453
Imprisonment is the primary penalty meted out by international and hybrid criminal tribunals and article 77 of the Rome Statute of the International Criminal Court (Rome Statute) sets forth two possible penalties for those convicted of the most serious human rights violations: imprisonment of up to 30 years or life in prison.454 The ICC has yet to complete a trial. However, the practice at other tribunals shows that while sentences have been reduced on the basis of mitigating factors in consideration of individual circumstances of the convicted, such factors have not prevented long prison sentences of over 20 years from being imposed in several cases involving crimes against humanity.455
The Right to Truth
The Inter-American Court of Human Rights has held that victims have a right to truth, as part of the right to judicial protection in the American Convention on Human Rights.456 The IACHR has emphasized that the right to truth also requires that states not restrict the right through legislative or other measures, which would violate the American Convention.457
Similarly, the UN Updated Principles to Combat Impunity recognize an inalienable right to truth and the right to know of victims of human rights abuses.458 As international jurisprudence and state practice have affirmed, the right to know exists in both individual and collective dimensions, such that societies affected by violence have, as a whole, the unwaivable right to know the truth of what happened as well as the reasons why and circumstances in which the aberrant crimes were committed, so as to prevent such acts from recurring.459 These rights pertain to uncovering the truth about events related to the perpetration of heinous crimes, as well as about the massive or systematic violations that led to the perpetration of those crimes.460 To give effect to these rights, states must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, along with appropriate non-judicial processes to complement those of the judiciary.461 The right to truth is also connected to victims right to guarantees of non-repetition of abuses, as full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.462
Potential for Involvement of the International Criminal Court
Colombia ratified the Rome Statute on August 5, 2002, with a declaration that it would not accept the ICCs jurisdiction over war crimes for seven yearsuntil 2009. Accordingly, the International Criminal Court has jurisdiction over crimes against humanity and genocide committed in Colombia or by Colombian nationals since November 2002.463
Colombias paramilitary groups had not yet demobilized at the time the Rome Statute went into effect in Colombia, and there are multiple credible reports that they continued to engage in serious crimes, including crimes against humanity, after 2002.
ICC Prosecutor Luis Moreno Ocampo has, from the start of the demobilization process and the negotiations over the Justice and Peace Law, expressed an interest in the process, sending a letter to the Colombian government in March 2005 requesting information about the draft law then being considered.464 The prosecutor has recently expressed an interest in the laws implementation, as well as in the investigations of paramilitary accomplices in the political system, noting that his office is monitoring the open proceedings against the paramilitary leaders, an issue that implicates members of Congress . Were analyzing the evolution of these cases and once we have completed the evaluation, we will make a pronouncement.465 During a visit to Colombia last year he also stated, with regard to paramilitaries accomplices, that: information has come up that implicates other people who are being investigated. These people could also have greater responsibility for the crimes, and so we are interested in them. We are watching how Colombia processes this type of case. Were checking.466
More recently, in June 2008, Moreno Ocampo sent another letter to the Colombian government inquiring about the accountability for paramilitaries accomplices as well as effect of the paramilitary leaders extraditions to the United States on accountability for human rights crimes. He asked specifically:
Moreno Ocampo paid another visit to Colombia in August 2008.468
The ICC could assert jurisdiction over crimes committed in Colombia by referral from the Colombian government or the U.N. Security Council; or if the ICC prosecutor uses his proprio motu powers, whereby he may act on his own initiative.469 Whether or not cases over paramilitaries and their accomplices crimes in Colombia would be admissible at the ICC depends on many factors, one of the most important of which is the adequacy of trials in Colombia for those crimes. The Rome Statute favors domestic prosecution of serious crimes where possible. At the same time, as Human Rights Watch has explained in past publications, the Rome Statute and international human rights standards require that such prosecutions meet substantial benchmarks.470
Of particular relevance to the case of Colombia is the requirement of credible, impartial, and independent investigations and prosecutions. Article 17 of the Rome Statute provides that a national alternative must involve a state genuinely able and willing to conduct investigations and prosecutions. Given that many of the individuals implicated in the current cases in Colombia are politically influential, law enforcement and judicial authorities must be scrupulously independent and impartial in conducting these investigations.
Accordingly, the national government must refrain from adopting laws and measures designed to shield persons responsible for serious crimes from accountability. Under the Rome Statute, unwillingness may include if investigation and prosecution is undertaken in a manner designed to shield the person from criminal responsibility, or conducted in a way that is inconsistent with intent to bring a person to justice.471
In terms of substance, crimes against humanity are among the most serious crimes under international law. Colombian prosecution of such crimes should include charges that reflect these crimes gravity. The same charges and theories of criminal responsibility that would be used before the ICC should be used in Colombia. These include command responsibility, and other forms of participation in planning and execution of the crimes, including being part of by a group acting with a common purpose, which would be relevant to politicians, members of the military, financial backers, and other close collaborators of the paramilitaries. Considering different forms of responsibility is particularly important in order to establish culpability even where the defendant is not accused of directly committing the crimes with which he is charged.
Another benchmark of special relevance in Colombia is the requirement of penalties that reflect the gravity of the crime. Whether the reduced sentences of five to eight years provided for in the Justice and Peace Law satisfy this requirement is highly questionable, given that such sentences are substantially lower than the standard sentences for crimes against humanity in international tribunalseven after taking into consideration mitigating factors such as a defendants cooperation with prosecutors. The additional sentence reductions the Colombian government has provided for by decree (allowing defendants to count 18 months of the time they spent negotiating, outside of government control, as time served), aggravate the problem even further, resulting in the possibility that persons convicted of multiple crimes against humanity could end up with sentences of only threeand-a-half years.
Given the seriousness of the crimes at issue, imprisonment should be the principal penalty for conviction. As previously noted, the ICCs primary penalties include either imprisonment for a specified number of years up to 30 years or life imprisonment when justified by the extreme gravity of the crime and individual circumstances. Imprisonment is also the primary penalty of other international and hybrid criminal tribunals, and life imprisonment or the death penalty tends to be the primary penalty for even a single act of murder in domestic justice systems around the world.472 Government decrees that would permit paramilitary leaders or their accomplices to serve reduced sentences on agricultural colonies, in military bases, or under house arrest, would also put in question whether Colombias prosecution is an adequate alternative to ICC prosecution.
440 Inter-American Court of Human Rights, Velasquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct. H.R., (Ser. C) No.4 (1988), para. 166. A crime against humanity is an act, such as murder; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, or any other form of grave sexual violence; persecution against any identifiable group based on political, racial, national, ethnic, cultural, religious, gender identity; enforced disappearance; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health, is committed as part of a widespread or systematic attack directed against any civilian population.
441 Inter-American Court, Case of the "Mapiripán Massacre," Judgment of September 15, 2005, Inter-Am.Ct.H.R., (Ser.C) No.134 (2005), section XIII, para. 216. See alsoInter-American Court of Human Rights, Velasquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. H.R., (Ser. C), No.4 (1988);19 Comerciantes Case and Case of the "Mapiripán Massacre." Colombia has accepted jurisdiction of the Inter-American Court of Human Rights pursuant to the American Convention on Human Rights. American Convention on Human Rights (Pact of San José, Costa Rica), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), ratified by Colombia on May 28, 1973.
442 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Colombia on Mar. 23, 1976, art. 2(3).
443 UN Human Rights Committee, Nature of the General Legal Obligation on States Parties to the Covenant, General Comment No.31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), paras. 18, 15. These duties arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6), which become crimes against humanity when committed as part of a widespread or systematic attack on a civilian population. Ibid., para. 18, citing: Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002 ratified by Colombia on August 5, 2002, art. 7.
444 UN Human Rights Committee, General Comment 31, para. 18.
446 UN Principles to Combat Impunity, adopted February 8, 2005, E/CN.4/2005/102/Add.1, principle 19.
447 Ibid., principles 24 and 19.
448 Ibid., principle 22.
449 Inter-American Court, Case of the "Mapiripán Massacre," Judgment of September 15, 2005, Inter-Am.Ct.H.R., (Ser.C) No.134 (2005), section XIII, para. 216. See also: Inter-American Court of Human Rights, Velasquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. H.R., (Ser. C), No.4 (1988).
450 UN Principles to Combat Impunity, principle 19 (emphasis added). See also: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted December 16, 2005, G.A. Res. 60/147, U.N. Doc. A/RES/60/147, part III, para. 4 (emphasis added) (noting the states duty to submit to prosecution the person allegedly responsible for the violations [constituting crimes under international law] and, if found guilty, the duty to punish her or him.).
451 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Colombia on Dec. 8, 1987, art. 4(2).
452 Rome Statute, art. 78.
453 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), as amended, http://www.un.org/icty/legaldoc-e/index.htm (accessed October 3, 2008), art. 24(2). Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res. 955, U.N. Doc.S/RES/955 (1994), as amended, http://22.214.171.124/ENGLISH/basicdocs/statute.html (accessed October 3, 2008), art. 23(2). Statute of the Special Court for Sierra Leone (SCSL Statute), January 16, 2002, http://www.specialcourt.org/documents/Statute.html (accessed October 6, 2008), art. 19(2).(In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.)
454 Rome Statute, art. 77.
455 Prosecutor v. Momir Nikolic, ICTY, Case No. IT-02-60, Sentencing Judgment (Trial Chamber), December 2, 2003, paras. 140-183. Judgment on Sentencing Appeal (Appeals Chamber), March 8, 2006, Disposition (sentence of 27 years for crimes against humanity while early guilty plea played important role in mitigating sentence; reduced to 20 years on appeal). Prosecutor v. Dragan Nikolic, ICTY, Case No. IT-94-2, Sentencing Judgment (Trial Chamber), December 18, 2003, para. 274, Disposition. Prosecutor v. Dragan Nikolic, ICTY, Case No. IT-94-2, Judgment on Sentencing Appeal (Appeals Chamber), February 4, 2005, Disposition (stating mitigating factors warranted a substantial reduction of sentence, but imposing 23 years imprisonment for crimes against humanity; reduced to 20 years on appeal). Prosecutor v. Obrenovic, ICTY, Case No. IT-02-60, Sentencing Judgment (Trial Chamber), December 10, 2003, paras. 149-156 (sentence of 17 years for crimes against humanity despite numerous mitigating circumstances). Prosecutor v. Akayesu, ICTR, Case No. 96-4, Judgment (Trial Chamber), September 2, 1998, paras. 184-187. Prosecutor v. Akayesu, ICTR, Case No. 96-4, Sentence (Trial Chamber), October 2, 1998 (sentence of life imprisonment despite several mitigating factors). Mitigating factors may include such factors as the accuseds cooperation with the prosecutor; voluntary surrender; entering a guilty plea; duress; age; and remorse. See: ICTY Rules of Procedure and Evidence, rule 101; ICTR Rules of Procedure and Evidence, rule 101; SCSL Rules of Procedure and Evidence, rule 101. Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: Topical Digests of the Case Law of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia, February 2004, http://hrw.org/reports/2004/ij/digest.pdf, p. 610.
456 American Convention on Human Rights (Pact of San José, Costa Rica), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), ratified by Colombia on May 28, 1973, art. 25. Inter-American Court of Human Rights, Case of the "Mapiripán Massacre," Judgment of September 15, 2005, Inter-Am.Ct.H.R., (Ser.C) No.134 (2005), section XIII, para. 216. See also: Inter-American Court of Human Rights, Velasquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. H.R., (Ser. C), No.4 (1988).
457 Inter-American Commission of Human Rights, Report on the Demobilization Process in Colombia, OEA/Ser.L/V/II.120, Doc. 60, Dec. 13, 2004, para.16.
458 United Nations Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, principle 2, February 8, 2005. UN Principles to Combat Impunity, principle 4.
459 Inter-American Commission of Human Rights, Report on the Demobilization Process in Colombia, OEA/Ser.L/V/II.120, Doc. 60, Dec. 13, 2004, para.18 (Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.) citing: Inter-American Court of Human Rights, Barrios Altos Case,Judgment of March 14, 2001, Inter-Am. Ct. H.R., (Ser. C), No. 75. United Nations, Report of the independent expert to update the Set of Principles to combat impunity, E/CN.4/2005/102, February 18, 2005.
460 UN Principles to Combat Impunity, principle 2.
461 Ibid., principle 5.
462 UN Principles to Combat Impunity, principle 2.
463 Rome Statute, art. 126.
464 Letter from the ICC Prosecutor Luis Moreno Ocampo to the Colombian Ambassador accredited before the ICC, Guillermo Fernandez de Soto, March 2, 2005.
465 Corte Penal Internacional analiza posibilidad de investigar crímenes de Farc y 'paras', El Tiempo, March 14, 2008, http://www.eltiempo.com/justicia/2008-03-15/ARTICULO-WEB-NOTA_INTERIOR-4013520.html (accessed March 15, 2008).
466 Corte Penal Internacional sigue pista a la parapolítica, asegura su fiscal jefe, Luis Moreno Ocampo, El Tiempo, Oct. 20, 2007.
467 Letter from ICC Prosecutor Luis Moreno Ocampo, to the Colombian Ambassador in The Hague, Francisco José Lloreda, [no date], transcribed in Corte Penal Internacional Hace Requerimientos a Gobierno Uribe, El Nuevo Siglo, August 15, 2008, http://www.elnuevosiglo.com.co/noticia.php (accessed August 15, 2008).
468 A verificar si Colombia investiga y juzga a criminales vino fiscal de Corte Penal Internacional, El Tiempo, August 25, 2008, http://www.eltiempo.com/archivo/documento/CMS-4465892 (accessed September 26, 2008).
469 Rome Statute, arts. 13, 14, 15.
470 Consistent with the Rome Statute, other international standards, and international and domestic practice, the benchmarks comprise: credible, impartial, and independent investigation and prosecution; rigorous adherence in principle and in practice to international fair trial standards; and penalties that are appropriate and reflect the gravity of the crime, that is, a term of imprisonment that reflects the seriousness of the offense. Human Rights Watch, Particular Challenges for Uganda in Conducting National Trials for Serious Crimes: Human Rights Watchs Third Memorandum on Justice Issues and the Juba Talks, September 2007. Human Rights Watch, Benchmarks for Assessing Possible National Alternatives to International Criminal Court Cases Against LRA Leaders: A Human Rights Watch Memorandum, May 2007.
471 Rome Statute, art. 17.
472 The information on domestic practice is drawn from a report on sentencing in various legal systems commissioned by the ICTY which is referred to in: Prosecutor v. Dragan Nikolic, ICTY, Case No. IT-94-2, Sentencing Judgment (Trial Chamber), December 18, 2003, para. 38. Human Rights Watch opposes the death penalty in all circumstances.