Honorable Justice Antonio José Lizarazo
Colombian Constitutional Court
Palace of Justice
Bogotá, D.C. – COLOMBIA
Subject: Human Rights Watch Amicus curiae on the Statutory Bill on the Special Jurisdiction for Peace
José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States, presents this amicus brief to the Honorable Constitutional Court of Colombia in the case RPZ-010 concerning the Statutory bill on the Special Jurisdiction for Peace. For that purpose, we respectfully state:
- Purpose and Summary of this Submission
Human Rights Watch respectfully requests that the Colombian Constitutional Court accept this submission for its consideration of the international legal arguments that are relevant to its assessment of Statutory bill on the Special Jurisdiction for Peace.
While applauding the peace process between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas, Human Rights Watch has repeatedly raised concerns regarding shortcomings in the accord that could undermine justice for war crimes and asked authorities to address these flaws in the legislation implementing the accord.
Unfortunately, the bill fails to address some of these issues and undermines the possibilities of achieving meaningful justice for atrocities committed during the armed conflict. This amicus brief includes Human Rights Watch’s assesment on the following issues: (1) an indefensibly rigid definition of “command responsibility” for FARC commanders that could impede efforts to secure accountability; (2) loopholes and ambiguities in the sanction regime for confessed war criminals that could allow them to escape meaningful punishment; (3) victim participation in proceedings before the Special Jurisdiction for Peace.
- Command responsability
In July 2017, Human Rights Watch submitted an amicus brief before this Honorable Court objecting to the definition of “command responsability” included in Constitutional Amendement 1 of 2017 for members of the Colombian Armed Forces. As we showed, the definition departed from two of the elements of command responsability under international law: the standard of knowledge and the definition of “effective control.”
The statutory bill includes a definition of command responsability for FARC commanders that solves the shortcomings concerning the “effective control,” but is less clear about the evidentiary standard regarding knowledge. Under article 67, prosecutors must prove that commanders had “knowledge based on the information at their disposal before, during and after the commission of the respective conduct.” Such language could be interpreted in a manner that is inconsistent with the standard of knowledge that is generally applied under international law.
The standard of knowledge to hold commanders criminally responsible under international humanitarian law hinges on whether they knew or had reason to know and should have known about the crimes. This means, as the Appeals Chamber of the ICTY noted in the “Celibici” case that the superior can be responsible if “information was available to him which would have put him on notice of offences committed by subordinates.” The availability of such information can be proven through a range of indicia, including, amongst others, the tactical situation, the level of training and instruction of subordinate officers and their troops, the number, type, and scope of the abuses, as well as the logistics involved, and the modus operandi of the crimes. Additionally, the “had reason to know” standard requires only general information about the possibility of crimes, not specific knowledge about discrete incidents.
The standard of knowledge under international law may also encompass criminal liability for commanders who fail to remain informed of the crimes committed by their subordinates. While other international criminal tribunals have limited constructive knowledge to a more restricted standard of knowledge, judges of the International Criminal Court (ICC) have expressed the view that, at least under the “should have known” standard in the Rome Statute, military commanders could face criminal liability if they fail to remain informed about their subordinates’ crimes. The ICC pre-trial chamber noted in Bemba that “the ‘should have known’ standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime.”
Human Rights Watch respectfully requests this court to determine that the Special Jurisdiction for Peace should apply the well-established definition of command responsibility under international law to FARC commanders investigated for their role on war crimes or crimes against humanity.
- Restrictions on rights and liberties
Another area of concern has been the sanctions to be imposed on war criminals who fully and promptly confess to their atrocities. The peace agreement stated that they would be exempt from any time in prison and would be subjected to “effective restrictions on freedoms and rights” while carrying out community service projects.
The bill leaves many potential loopholes and ambiguities unresolved concerning the extent of these “restrictions” and how they will be monitored and enforced. Human Rights Watch respectfully requests that this Honorable Court examine these shortcomings to ensure that they cannot be employed to allow confessed war criminals to escape meaningful punishment.
Our key concerns regarding restrictions on rights and liberties include the following:
- The bill states that the Peace Tribunal will determine the “place of residence” of sanctioned individuals, but there is no indication of the nature or location of this place.
- The bill lacks a clear indication as to whether and to what extent the sanctioned individual’s movements will be restricted to their “place of residence” outside of the “hourly periods” when they are carrying out community service projects.
- The bill provides that sanctions against FARC guerrillas and members of the Armed Forces can be reduced if the sanctioned individuals have carried out reparative projects since the signing of the peace accord or as part of the demining component of the agreement. However, it fails to specify that such sentence reductions will be granted only for time served in conditions similar to those provided for in the sanctions—including being subject to monitoring and requiring authorization to move.
- The bill provides that convicted members of the armed forces will be required to “establish residency in Military or Police units that are nearby to the places of fulfillment of their sanctions, during the days that these are executed.” The bill fails to clarify; however, what sort of supervision and control will be imposed to sanctioned individuals the days they are not executing their sanctions—and are therefore allowed to leave their “places of residency.”
- Victim participation in proceedings
Another concern for Human Rights Watch has been to ensure that the Special Jurisdiction for Peace includes an appropriate framework that guarantees meaningful victim participation. Fortunately, the Statutory Bill on the Special Jurisdiction for Peace includes broad victim participation rights. However, the implementing legislation passed by Congress at the moment has yet to detail how these broad rights will be included in the proceedings of the Special Jurisdiction for Peace.
Victim participation in criminal trials can advance victims’ access to justice, contribute to the quality and legitimacy of court processes, and ensure victims are informed about relevant proceedings.
The Inter-American Court of Human Rights has repeatedly held that, as part of their obligation to prosecute human rights abuses, states should grant victims “full possibilities of being heard and appearing at the corresponding legal proceedings.” Similarly, the United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity calls on states to ensure a “broad legal standing” to victims.
In addition, some international tribunals have provided for victim participation in their own proceedings. Most significantly, under the Rome Statute, victims of international crimes can contribute to the proceedings before the ICC, separately from testifying as witnesses.
Human Rights Watch respectfully requests this court to ensure meaningful victim participation, in line with international standards.
For the abovementioned reasons, we ask this Honorable Court to:
- Accept Human Rights Watch as a Friend of the Court in this case, and
- Take into account the legal arguments and international standards presented in this brief when evaluating the Statutory bill on the Special Jurisdiction for Peace.
 Human Rights Watch, Colombia: Amicus Curiae regarding the Special Jurisdiction for Peace, July 17, 2017, https://www.hrw.org/news/2017/07/17/colombia-amicus-curiae-regarding-special-jurisdiction-peace
 Statutory bill regarding the Special Jurisdiction for Peace, art. 67.
 See, e.g., Prosecutor v. Hadžihasanović and Kubura (Trial Chamber), ICTY, Case No. IT‐01‐47‐T, March 15, 2006, para. 99; Prosecutor v. Mucić et al. (“Čelebići”) (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed February 6, 2018), para. 243; Prosecutor v. Zlatko Blaškić (Appeals Chamber), ICTY Case No. IT-95-14-A, July 29, 2004, https://www.legal-tools.org/doc/88d8e6/pdf/ (accessed February 6, 2018), para. 69.
 Prosecutor v. Mucić et al. (“Čelebići”) (Appeals Chamber), ICTY, February 20, 2001, paras. 238 and 241 (“This information does not need to provide specific information about unlawful acts committed or about to be committed.”); Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe (Trial Chamber), ICTY, February 25, 2004, para. 629; Prosecutor v. Nahimana, Barayagwiza and Ngeze (Appeals Chamber), ICTR, Case No. ICTR 99-52-A, November 28, 2007, para. 791; Prosecutor v.Halilovic(Trial Chamber), ICTY, Case No. IT-01-48, Judgment, November 16, 2005, para. 65.
 Prosecutor v. Mucić et al. (“Čelebići”) (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed February 6, 2018), para. 243; Prosecutor v. Jean-Pierre Bemba Gombo (Pre-trial chamber), ICC, Case No. 01/05-01/08, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo,” June 15, 2009, https://www.legal-tools.org/doc/07965c/pdf/ (accessed February 6, 2018), para. 433.
 Prosecutor v. Jean-Pierre Bemba Gombo (Pre-trial chamber), ICC, Case No. 01/05-01/08, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo,” June 15, 2009, https://www.legal-tools.org/doc/07965c/pdf/ (accessed February 6, 2018), para. 433.
 Statutory Bill Regarding the Special Jurisdiction for Peace, art. 129.
 Statutory Bill Regarding the Special Jurisdiction for Peace, art. 129.
 Statutory bill regarding the Special Jurisdiction for Peace, arts. 134, 135, and 141.
 Statutory bill regarding the Special Jurisdiction for Peace, art. 129 par. 1 (emphasis added).
 See Human Rights Watch letter, “Colombia: Fix Flaws in Transitional Justice Law,” October 9, 2017, https://www.hrw.org/news/2017/10/09/colombia-fix-flaws-transitional-justice-law
 See Statutory bill regarding the Special Jurisdiction for Peace, arts. 14, 15.
 See generally Institute for Security Studies and REDRESS, Victim Participation in Criminal Law Proceedings: Survey of Domestic Practice for Application to International Crimes Prosecution, September 2015, http://www.redress.org/downloads/1508victim-rights-report.pdf (accessed May 28, 2018), pp. 7-11.
 See, for example, Inter-American Court of Human Rights, Duran and Ugarte case, Judgment of August 16, 2000, Inter-Am Ct.H.R., Series C. No. 68, para. 129; Inter-American Court of Human Rights, Villagrán Morales case, Judgment of November 19, 1999, Inter-Am Ct.H.R., Series C. No. 63, para. 227; Inter-American Court of Human Rights, Ximenes López case, Judgment of July 4, 2006, Inter-Am Ct.H.R., Series C. No. 149, para. 193; Inter-American Court of Human Rights, Ituango Massacres case, Judgment of July 1, 2006, Inter-Am Ct.H.R., Series C. No. 148, para. 296.
 Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (“Impunity Principles”), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005, principle 19. See also United Nations Commission on Human Rights, “Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Professor Diane Orentlicher,” E/CN.4/2004/88, February 27, 2004, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G04/113/55/PDF/G0411355.pdf?OpenElement (accessed May 28, 2018), para. 44.
 See, for example, Rome Statute, art. 68(3). See also Extraordinary Chambers in the Courts of Cambodia, “Internal Rules and Regulations,” https://www.eccc.gov.kh/en/document/legal/internal-rules (accessed May 28, 2018), Rule 23; “Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990,” adopted on January 30, 2013, https://www.hrw.org/news/2013/09/02/statute-extraordinary-african-chambers, art. 14; Special Tribunal for Lebanon, “Rules of Procedure and Evidence,” adopted on March 20, 2009, https://www.stl-tsl.org/images/RPE/RPE_EN_April_2017.pdf (accessed May 28, 2018), rule 87.
 Rome Statute, arts. 19, 53, 54, and 68.