Dear Congressman Pedraza,
 
I am writing to share Human Rights Watch’s concerns regarding the definition of “command responsibility” in bill 2/2016 —one of the key legislative proposals to implement the peace agreement with the Revolutionary Armed Forces of Colombia (FARC) guerrillas— which was discussed yesterday in a public hearing in the Commission you preside. 
 
As you are likely aware, Human Rights Watch has had concerns about the multiple definitions of command responsibility —the rule that establishes when superior officers can be held responsible for crimes committed by their subordinates— the Colombian government has introduced throughout the peace process. We were initially concerned that the definition in the original version of the agreement included language that could be interpreted to depart from two of the elements of command responsibility under international law in ways that could allow military commanders to escape accountability for atrocities committed under their watch.  First, whereas under international law criminal responsibility vests when commanders had “effective control” over the troops who committed the crime, the definition in the original agreement appears to require that judicial authorities within the Special Jurisdiction for Peace prove the commander had effective control over the criminal conduct itself. Second, whereas under international law if a commander had reason to know and should have known of the crime (i.e. had constructive knowledge) they may be criminally responsible, the definition in the agreement appears to require that judicial authorities prove that the commander had actual knowledge of the crime. 
 
The revised agreement reached in November fixed the first flaw, bringing the definition closer in line with international law.  Regrettably, hours before the deal was signed this key improvement was backtracked in the definition for state agents, after active and retired army officials expressed their disagreement with the new definition.  
 
Unfortunately, we observe —as the prosecutor of the International Criminal Court has recently noted  — that the command responsibility definition in the bill can still be interpreted to depart from the definition under international law in ways that could thwart efforts to hold military commanders accountable to the extent international law requires. 
 
First, there has been little progress regarding the standard of knowledge: the bill continues to include the flawed language from the deal, while adding that command responsibility requires “actual or updatable knowledge of the commission [of the crime].”  It is unclear what “updatable” means in that context —it appears to refer to the commander’s knowledge of a crime that has already been committed. 
 
In addition, the bill distorts the “effective control” standard developed in the case law of international criminal tribunals in a way that could have the practical effect of significantly weakening it. We note that the definition of “effective control” in the bill includes a range of evidentiary elements that are similar to those provided for in the case-law of international criminal courts, particularly from the ICC’s Bemba case.  However, the international case law lists a range of factors that “may indicate” the existence of effective control without any expectation that any or all of those factors need be in evidence in the context of any one case.   And the ICC prosecutor has recently noted that under the ICC case-law “effective control” over subordinates only requires the material ability to prevent or repress the commission of the criminal conduct or to submit the matter to competent authorities afterwards.  The bill, on the other hand, provides that all of these criteria must be proven. There is no logical basis for this departure from established case law and the result appears to be an indefensibly rigid definition that could unreasonably impede efforts to secure accountability.  This appears to mean that if one of these requirements —for example, that the crime was “related to the activities under [the commanders’] control”— is not proven before the Special Jurisdiction for Peace, commanders would be allowed to escape justice for the crimes committed by their subordinates. 
 
Congressman Pedraza, I hope that you and your colleagues in the House of Representatives will take these concerns in consideration when discussing bill 2/2016. The prospects that Colombia achieves a just peace relies on the guarantees that those most responsible for atrocities will be adequately held accountable. The availability of a definition of “command responsibility” that conforms with international law serves an indispensable role in achieving that purpose.  
 
Respectfully,
 
José Miguel Vivanco   
Human Rights Watch