Colombia: Amicus Curiae Regarding the Special Jurisdiction for Peace

Honorable Natalia Ángel Cabo

Colombian Constitutional Court

Palace of Justice

Bogotá D.C. – Colombia

Case: D-16414, Constitutional Review of JEP Decision TP-SA-Senit 5 of 2023

Subject: Human Rights Watch Amicus Curiae on Constitutional Review of JEP’s SENIT-5 Decision

Juanita Goebertus Estrada, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States of America, presents this amicus brief to the honorable Constitutional Court of Colombia concerning the constitutionality review of the decision of the Special Jurisdiction for Peace (JEP), “Sentencia Interpretativa Senit 5 – TP-SA-Senit 5 de 2023”, dated 17 May 2023, with file number D-16414. We respectfully state: 

I. Purpose and Summary of this Submission

In this submission, Human Rights Watch recalls that the duty to prosecute and punish human rights violations and serious crimes under international law is an obligation under treaty-based and customary international law. This duty requires the application of effective sanctions that reflect the gravity of the crime. Following international standards and the practice of international and national courts adjudicating international crimes, Human Rights Watch emphasizes that the special sanctions imposed by the Special Jurisdiction for Peace should at least take the form of “effective restrictions on rights and freedoms,” including movement, as provided for under the terms of the 2016 Peace Agreement.

Human Rights Watch has monitored and reported on the human rights situation in Colombia, including on aspects related to the implementation of the 2016 Peace Agreement and the application of special sanctions. Human Rights Watch has also actively followed the International Criminal Court’s (ICC) engagement in Colombia.

This brief is structured as follows: Section II provides an overview of the duty to prosecute gross human rights violations amounting to serious crimes under international law and lays out the obligation as enshrined in treaties and customary norms. Section III addresses the obligation to impose effective punishment under international law for crimes of this nature, with reference to the practices of international and national courts prosecuting international crimes, as well as the sanctions regime included within the 2016 Peace Agreement in Colombia. Section IV articulates the petition of this amicus.

II. The Duty to Prosecute and Punish Gross Human Rights Violations Amounting to Serious Crimes under International Law

Colombia has a duty to prosecute and punish perpetrators of gross human rights violations amounting to serious crimes under international law; as relevant to the crimes addressed through the Special Jurisdiction for Peace, this obligation is provided for through treaties and customary norms.

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide establishes this obligation in articles IV and V, including the duty to provide “effective penalties.”[1] Similarly, rule 158 of the International Committee of the Red Cross’ study of the rules of customary international humanitarian law provides that “states must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”[2] The Rome Statute of the International Criminal Court recalls, in its preamble, states’ duty to exercise their own criminal jurisdiction over those responsible for international crimes.[3] Additionally, as reflected in the principle of complementarity enshrined in article 17 and other key provisions of the Rome Statute, national courts not only have the first opportunity to prosecute international crimes, but an obligation to prosecute them. [4] 

The obligation to prosecute has been codified in treaties within the Inter-American human rights system, such as the 1985 Inter-American Convention to Prevent and Punish Torture[5] (articles 6, 12 and 14) and the 1994 Inter-American Convention on Forced Disappearance of Persons[6] (articles I, III, IV, VI), to which Colombia is a party. This latter convention emphasizes that an offense should result in “appropriate punishment commensurate with its extreme gravity” (article III). The Inter-American Court of Human Rights (IACtHR) has found that a state must “use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”[7]

On the latter obligation—to impose appropriate punishment—in its 2018 monitoring compliance order in the Barrios Altos and La Cantuta cases, the IACtHR recalled that “the execution of the sentence is also part of the obligation” to investigate, prosecute, and punish, and that the “the execution of the sentence is an integral part of the right of access to justice for victims of serious violations and their families.”[8] In this regard, the court emphasized that “during the execution of the sentence, undue benefits that could lead to a form of impunity should not be granted,”[9] and that “the international obligation to punish those responsible for serious human rights violations with penalties appropriate to the gravity of the criminal conduct cannot be unduly affected or rendered illusory during the execution of the sentence that imposed the sanction, in accordance with the principle of proportionality.”[10]

More globally, “a wide range of activities of the United Nations and other intergovernmental organizations reinforce the view that punishment plays a necessary part in states’ duty under customary international law to ensure the rights of life, freedom from torture, and freedom from involuntary disappearance.”[11]

The UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity,[12] intended to serve as guidelines to assist states in developing measures to combat impunity for human rights violations, reflects the requirement of prosecution of the most serious crimes.[13] The principles indicate that states have a duty to investigate “serious crimes under international law” and to take measures to ensure that those suspected of criminal responsibility “are prosecuted, tried and duly punished.” Crimes falling into this category include violations of the Geneva Conventions, genocide, crimes against humanity, and other violations of international human rights that are crimes under international law or which international law requires states to penalize, such as torture, enforced disappearances, extrajudicial execution, and slavery.

The duty to prosecute and punish international crimes and grave human rights violations is a central component of the 2016 Final Peace Agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) (2016 Peace Agreement).[14] Colombia’s 2016 Amnesty Law specifically excludes crimes of this nature from the scope of this law; namely crimes against humanity, genocide, war crimes, hostage taking and other grave deprivation of physical liberty, torture, sexual violence, child abduction, forced displacement, and recruitment of minors.[15]

III. Effective Punishment Under International Law

Colombia has an obligation under international law to impose punishments for human rights violations and serious violations of the laws of war that are proportionate to the gravity of the crimes.[16] This includes obligations under the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[17] and the 2006 International Convention for the Protection of all Persons from Enforced Disappearance[18], which say that penalties should be appropriate and should take into account the grave nature or extreme seriousness of these crimes (articles 4 and 7, respectively).

The practice of international tribunals and national courts trying international crimes[19] show that the requirement of penalties appropriate to the gravity of the criminal conduct requires imprisonment, that is, deprivation of liberty, for genocide, crimes against humanity and war crimes.[20] For example, under the Rome Statute, penalties comprise imprisonment and may also include fines or forfeitures of proceeds, property, and assets. In determining the sentence, judges should consider factors including the gravity of the crime.[21]

The 2016 Peace Agreement in Colombia established a two-pronged approach to sentencing, acknowledging the importance of a retributive component amounting to effective restrictions of rights and freedoms, while at the same time approaching the issue of sentencing from a transitional justice perspective, therefore focusing also on the restorative component of the sentence.[22]

In its 2017 amicus curiae to the Colombian Constitutional Court, the ICC Office of the Prosecutor (OTP) detailed its position concerning potential sanctions under the peace agreement vis-à-vis the Rome Statute. In its amicus, the OTP stated that when it comes to Rome Statute crimes, national accountability systems must allow for penalties that reflect the founding principles of the Rome Statute system, namely, ending impunity for the gravest crimes. This translated, in the OTP’s views, into penalties that appropriately reflect the purpose of sanctions, including deterrence, retribution, rehabilitation, and reparations.[23] Moreover, the OTP emphasized that the effectiveness of sanctions comprising restriction of rights and freedoms will be assessed depending on their nature and scope, and on their effective implementation, including a strict monitoring system.[24]

More recently, the 2021 Cooperation Agreement between the Office of the Prosecutor and the Colombian government – signed following the OTP’s conclusion of its preliminary examination, that is, its inquiry into whether a formal investigation by the ICC is merited – underscores the importance of genuine sanctions. While the OTP closed its preliminary examination with a determination that potential cases of Rome Statute crimes committed in Colombia would not presently be admissible before the ICC, given genuine national proceedings, Article 6 of the agreement states that “[i]n line with the Rome Statute, the Office of the Prosecutor may reconsider its assessment…in light of any significant change in circumstances, including any measures that might significantly hamper the progress and/or genuineness of relevant proceedings and the enforcement of effective and proportionate penal sanctions of a retributive and restorative nature.”[25]

In its decision on the constitutionality of the JEP’s Statutory Bill,[26] the Colombian Constitutional Court emphasized that the right to justice imposes on the state the duty to investigate, prosecute and sanction.[27] The court recalled that, given the nature of the “special sanctions” — that is, sanctions based on the conditionality regime[28] and the voluntary contribution of perpetrators towards putting an end to the armed conflict — sanctioned individuals will not face conventional conditions of deprivation of liberty, that is, imprisonment. However, they will be subject to an effective restriction of rights and freedoms, including a lack of freedom of movement.[29] Furthermore, the court stated that the JEP must guarantee the effectiveness of sanctions.[30] The Constitutional Court highlighted the importance of a strict supervision of the special sanctions imposed, including precise hourly periods, places of residency, clear territorial demarcations as well as clear guidelines on movement beyond the demarcated areas for the purpose of execution of other activities in compliance with the peace agreement.[31] The court also recalled that the supervision of sanctions falls under the purview of JEP’s Tribunal for Peace, with support from the United Nations Verification Mission.[32]

The court also underscored the two-fold component of sanctions, emphasizing the restriction of rights and freedoms that sanctioned individuals must face within the retributive component, and the strict conditions of supervision over the course of the extension of the sentence.[33] It also outlined the restorative component, entailing the completion of reparative actions by sanctioned individuals, following their acknowledgment of responsibility.

A failure to implement effective restrictions on rights and freedoms would be inconsistent with Colombia’s human rights obligations.

IV. Petition

For the abovementioned reasons, we ask this honorable court to:

1. Accept Human Rights Watch as a Friend of the Court in this case, and
2. Take into account the legal arguments and international standards presented in this brief when evaluating the constitutionality of JEP’s decision “Sentencia Interpretative Senit 5” (May 17, 2023) to ensure sanctions imposed by the JEP include the retributive component, amounting to effective restrictions on rights and freedoms. 

Juanita Goebertus Estrada

Director, Americas divison 

Human Rights Watch