additional challenges to the Special Jurisdiction for Peace in Colombia – EJIL: Speak up!

The transitional justice process in Colombia and the institution at its centre, the Special Jurisdiction for Peace (JEP), have encountered a series of difficulties (see here and here). Aware of this, the ICC Prosecutor announced on 28 October 2021 the closing of the preliminary examination of the country. This decision was partly prompted by the JEP’s progress in two of its ten ongoing cases. However, while the progress of this Court is undeniable, the Prosecutor’s decision was considered by some to be premature (here and here). This is not only because the process is still in its infancy, but also because long-standing challenges remain unresolved (see “The rocky road to peace”) and new ones appeared.

Long-standing challenges

The JEP suffers from at least three major problems: government interference, broad jurisdiction, and the lack of a coherent prosecution strategy. All three remain unresolved today.

First, since the beginning of his administration, President Duque has undermined the work of the JEP. It is either directly, by cutting off its funding Where to veto one’s statuteor indirectly, by failing to ensure safety and security of victims, witnesses and former FARC members. Even though these issues have been tackled in unprecedented ways Cooperation agreement with the ICC, they persist today. This is evident from two recent developments in the country: a Decision 2022 by the Colombian Constitutional Court condemning the murder of 54 former FARC members in 2021 and calling for immediate government action; and the murders of two other former FARC members in the first months of 2022.

Second, the broad jurisdictional reach of the JEP continues to be a problem. The JEP exercises jurisdiction over all of Colombia for a period of 50 years. With such a broad temporal scope, far wider than that of any other international criminal tribunal, the JEP may have difficulty obtaining evidence for some of the oldest cases. In others, as pointed out by the Procuraduria, the evidence is so vast that it is not easily processed and analyzed by judges, nor easily accessible to all parties. This in turn raises concerns about due process guarantees, in particular the right of the accused to have access to all the facts supporting the criminal charges against him.

Third, the JEP still lacks a coherent prosecution strategy. This problem manifested itself early on in the court’s dual approach to prioritization. By investigating a set of crimes that occurred in a given region (“territorial cases”), while covering the same crimes nationwide (“thematic cases”), a confrontation was inevitable. Today, this problem persists with the opening of three new “umbrella” cases dealing respectively with all crimes committed by the FARC, by the armed forces and against indigenous communities. Although these three new cases would necessarily involve the other seven, no explanation was given as to how to avoid this inevitable overlap.

These three questions, always present at the JEP, have not been resolved with the progress of the cases 1 and 3 underlined by the Prosecutor. On the contrary, as we will see in the next section, progress in these cases has brought about some problems of their own.

New challenges arising from cases 1 and 3

As stated by the ICC Prosecutor, the progress in cases 1 and 3 is commendable. By the indictment of eight former FARC members in case 1 (car 019) and 26 people, including state agents, in case 3 (automobiles 125 and 128), the JEP works to bring accountability for international crimes and to guarantee the rights of victims. However, a closer look at these indictments reveals issues with the JEP’s understanding of the sources of international crimes and how to conduct criminal investigations.

Problems of identifying the sources of international crimes

When defining the applicable law, the judges of cases 1 and 3 were confronted with the ambiguity of the JEP law which did not include a catalog of crimes within its jurisdiction. Instead, it makes vague reference to national law, human rights law, international humanitarian law and international criminal law as applicable law.

This vague reference to sources has led judges to rely on the Rome Statute as the sole source of international criminal law when applicable. When the crimes preceded this treaty, case 1 opted for its retroactive application while case 3 resorted to customary international law. These conclusions are problematic for the following reasons.

First, by relying solely on the Rome Statute, both cases inadvertently concluded that this treaty became the only source of international criminal law once it entered into force. However, there is a body of substantial international criminal law made up of other treaties and customs which deviate from the Statute in certain respects. Relying solely on the Rome Statute implies that the JEP cannot prosecute international crimes that are based only on customary international law, for example.

Second, using the Rome Statute to prosecute crimes committed before its entry into force is a violation of the nullum crime sine lege principle. The judges in case 1 justified this by declaring that such retroactive application of the Statute was authorized in view of a principle specific to the JEP: the principle of the centrality of victims’ rights. However, it has not been explained how the retroactive application of criminal law guarantees the rights of victims or justifies the violation of the principle of crime void sine lege.

Third, by resorting to customary international law as an alternative to the retroactive application of the Rome Statute, Case 3 did so without providing sufficient evidence of state practice or legal opinion in support of the customary nature of the crimes charged. The judges simply said that those crimes in the indictments that took place before the Rome Statute existed, had already been prosecuted by the ad hoc courts. Although important, the practice of ad hoc courts is neither state practice nor legal opinion and their allegations of customary crimes have in many cases been considered creative legislation.

Besides these problems with the sources of international crimes, Case 1 also had a problem with the conduct of the investigation that led to his first indictment. This is developed in the next section.

Problems related to the conduct of criminal investigations

Even if the evidentiary threshold at this stage is low (“reasonable grounds to believe”), the evidence supporting the indictments in Case 1 may not be sufficient to secure convictions at trial. This is due to the passive role in leading investigative efforts in this case. The judges in Case 1 simply collected the information from databases and reports submitted by different organizations with little or no reference to direct evidence such as victim or witness statements. But even if the cases do not go to trial, because of an admission of guilt or recognizerelying on this insufficient evidence may affect the JEP’s overall objective of seeking the truth for the victims.

Case 1 also took a particular approach to the investigation by deciding not to focus on the facts of the case, but on the “phenomena” derived from those facts. This focus on “phenomena” was justified by the “transitory nature” of the proceedings before this court. According to this model, individuals are accused in the abstract of having committed an international crime that is part of a “phenomenon”.

This “phenomenal approach” to the investigation could lead to tensions with due process, as it could interfere with the accused’s right to be informed in detail of the nature, cause and content of the charges against him. him, as defined in article 14 of the ICCPR. In other words, by focusing on “phenomena”, the accused risks not being informed of the facts on which the charges should be based. Moreover, by examining “phenomena” and not facts, the JEP may not be fulfilling its mandate to prosecute the most serious and representative crimes. Instead, it could limit itself to a general description of the Colombian conflict; a task that seems more appropriate for the truth commission established in the Peace Accord (Comisión para el Establecimiento de la Verdador CEV).

These issues, it must be said, were not present in the indictments of Case 3. The judges here took a more traditional approach to criminal procedure by taking an active role in the investigation, s relying primarily on direct evidence and focusing on the facts. In this case, 348 interviews (voluntary versions) were conducted in which witnesses and alleged perpetrators provided the JEP with direct evidence of the killing of civilians between 2002 and 2008 in what became known as the false positives. Although the decisions mentioned “phenomena”, the charges were specific. They identified the alleged perpetrators, the direct victims and the circumstances surrounding the alleged crimes.

Final remarks

This overview of old and new challenges supports the contention that the Prosecutor’s decision to end the preliminary examination was premature. Not only has the JEP’s progress been modest, but it still struggles with government interference, a broad jurisdictional scope, and a lack of a prosecution strategy. Further, the indictments in Cases 1 and 3 reveal problems in understanding the sources of international criminal law and how to conduct criminal investigations.

However, this does not mean that the ICC should immediately conclude that Colombia is unwilling or unable to prosecute Rome Statute crimes and therefore open an investigation. Colombia’s efforts for peace and accountability are genuine and the JEP’s challenges and problems, while many, are surmountable. The upcoming elections could lead to a government determined to implement the peace accord. In addition, the JEP can still define a coherent prosecutorial strategy and systematically collect and analyze the vast amounts of information it has received.

Regarding the indictments, although there are some concerns in Case 1, Case 3 showed a better understanding of international criminal law both substantively and procedurally. This led to the historical hearings admission of guilt or recognize for false positives where perpetrators offered victims and society a full and accurate account of their crimes.

Following this trend, decisions in other cases can be based on national and international criminal law applicable at the time of the crimes, thus safeguarding the principle of legality. These decisions can also benefit from a more active judicial system investigating and ensuring that charges are based on facts and supported by direct evidence.

Overcoming these challenges would guarantee the rights of the accused in the proceedings and contribute to the JEP’s overall mission to bring justice and truth to victims and to society as a whole.

Thelma J. Longworth