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Wednesday, December 19, 2007

Colombia in the Sight of the International Criminal Court

(Article sent and translated by the Alvear Restrepo Collective)
José Alvear Restrepo Lawyers’ Collective
Colectivo de Abogados “José Alvear Restrepo”
November 19, 2007
Bogotá, Colombia
The different informal academic visits to Colombia undertaken by senior ICC
officials –along with their meetings with victims, judicial authorities, the
national government, and human rights organizations-, in addition to the
recent visit by ICC Prosecutor-General Luis Moreno Ocampo, fulfil the
expectations of the victims of crimes against humanity with respect to the
possibility of overcoming impunity as an historic challenge in demand for the
rights to truth, justice, and comprehensive reparation, which would be
impossible within the framework of so called “Justice and Peace” regulations
applied to paramilitary members.
Likewise, this visit by the ICC Prosecutor –and the one the President of the
Inter-American Court- are a show of support for the Supreme Court of Justice
and its investigations into “para-politics” as well as a call to respect the
Court’s independence, which has recently been attacked by the president of
When Souhayr Belhassen, president of the FIDH, spoke with El Tiempo on the
report evaluating the application of the Justice and Peace Law, she concluded
the law is “[…] a disguise sanctioned to avert the action of the ICC. […] The
report confirmed the aim to eliminate the criminal responsibility of the
principal authors of crimes against humanity. The victims participating in the
public hearings are not guaranteed their safety. The paramilitaries continue
to commit crimes from jail. Moreover, instead of expressing remorse for their
crimes, they justify them in their voluntary confessions.” [1]
The ICC means to deny impunity or the absence of punishment for those
responsible for the commission of crimes against humanity. This is an
impunity, which has been desired by the victimisers and those supporting these
crimes. The grave and systematic human rights violations are crimes normally
carried out in settings favouring impunity by politicians, civilian or
military authorities, or groups that are a part or prolongation of the State
(such as paramilitary groups). In the criminal exercise of power, these
parties perpetrate acts of torture, forced disappearances, forced
displacement, extrajudicial executions, genocide, as well as other abuses,
against a defenceless civilian population. In short, these sophisticated
mechanisms of repression are set to guarantee impunity.
History reveals how impunity is inherent in these types of crimes. In many of
the countries where grave human rights violations have been committed, the
judicial system does not function. In many of these crimes, investigations are
initiated and apparent trials are carried out before military tribunals or
civilian courts; however, these actions usually only result in prescriptions,
dismissals, the closing of proceedings, or acquittals, which create the
appearance of justice. In certain cases, persons are imposed sentences, which
are ridiculously disproportional to the gravity of the crimes committed. (As
will surely occur in the proceedings of the Justice and Peace Law.)
Accordingly to the ICC, trials must be carried out against those most
responsible for crimes against humanity. As a result, the Court is following
up on the application of the so-called Justice and Peace Law as well as on
such grave cases as para-politics (which currently implicates hundreds of
politicians with links with paramilitary organisations). In this sense, Luis
Moreno Ocampo recently stated, “[w]e are following up on how the Colombian
Justice system may process these types of cases. We are checking.” [2] In
other words, the ICC is waiting to see if the Justice and Peace processes are
genuine trials or merely ways to extract the responsible parties from justice.
Likewise, the ICC sees these para-politicians as the instigators and economic
and political beneficiaries of the crimes perpetrated through paramilitarism.
Nonetheless, in spite of the very important work being carried out by the
Supreme Court in the search for justice, these politicians are still not being
processed for these crimes against humanity, rather only for aggravated
conspiracy to commit an crime (corresponding to belonging to these groups),
which does not resolve the principal judgement for these crimes committed with
the purpose of guaranteeing their current economic and political power.  
With respect to such international crimes as crimes against humanity, all
States must investigate and punish. Each State possesses the jurisdiction for
the crimes committed by their citizens -or citizens from other States- in
their territory. However, in a complementary manner, when a State cannot –or
does not want to- investigate and convict, the opportunity rises for the ICC
to investigate and punish the parties responsible for the unpunished crimes.
“If the national State does not guarantee the absence of impunity, the
international community will,” asserted Luis Moreno Ocampo. [3] On this visit,
senior officials from the ICC Prosecutor-General’s Office confirmed the
ongoing commission of crimes against humanity (despite the enforcement of ICC
jurisdiction since November 2002), which during the Álvaro Uribe Vélez
administrations has amounted to more than a million persons internally
displaced, hundreds of new forced disappearances, and thousands of civilians
murdered and extrajudicially executed. These crimes  -as well as those of the
past- also remain in total impunity. Furthermore, the regulations like those
for the Justice and Peace process have resulted in more than 35,000 persons
demobilized collectively and individually, but only 55 in prison.
The ICC will put into motion the national investigations and trials for crimes
against humanity. According to Luis Moreno Ocampo, “crimes against humanity
are not national affairs. The international community may intervene. It is not
a local affair and it is not an ideological issue.” [4] This statement, which
concerns recent government criticism of the Supreme Court, also manifests
that, if justice does not function in either the Justice and Peace or ordinary
jurisdictions, the ICC will intervene. (And officials from the executive
branch, members of congress, or members of the military will enjoy no special
immunity against prosecution.) Furthermore, Ocampo stated, “[a]ll I do is
analyze the criminal investigations of acts committed after November 2002,
when Colombia ratified the treaty of the Court. I analyze if there are current
criminal investigations and if they are genuine.” [5]
With a permanent International Criminal Tribunal (such as the ICC), which
tries the authors of crimes against humanity, the current impunity reigning
within States may be overcome without violating the principle of sovereignty.
The Colombian State is preparing for this eventuality. In fact, the executive
branch and the Ministry of Foreign Affairs has gone to The Hague, where the
ICC is headquartered, and even keep an official there on an ongoing basis (who
in the hallways of the Court is known as "Justice and Peace" since he tries to
convince everyone the trials are real and that the magistrates, judges,
prosecutors, and human rights defenders will be able to pursue justice against
the paramilitaries members, active duty generals, and members of congress).
Nonetheless, even more significantly, after holding interviews with the Office
of the Prosecutor (in Colombia and The Hague) and the Victims and Witnesses
Unit, the victims continue to present communications on crimes under ICC
jurisdiction. Furthermore, many of these ICC officials study this vast amount
of information on Colombia in the Spanish language. In conclusion, we believe
in advocating for ICC jurisdiction with respect to the current impunity in
End Notes  
1 Piden a CPI investigar a ex 'paras'. El Tiempo, Bogotá, October 4, 2007,
<http://www.eltiempo.com/tiempoimpreso/edicionimpresa/justicia/2007- <http://www.eltiempo.com/tiempoimpreso/edicionimpresa/justicia/2007-10-04/ARTICULO-WEB-NOTA_INTERIOR-3751257.html> 10- <http://www.eltiempo.com/tiempoimpreso/edicionimpresa/justicia/2007-10-04/ARTICULO-WEB-NOTA_INTERIOR-3751257.html> 04 <http://www.eltiempo.com/tiempoimpreso/edicionimpresa/justicia/2007-10-04/ARTICULO-WEB-NOTA_INTERIOR-3751257.html> / <http://www.eltiempo.com/tiempoimpreso/edicionimpresa/justicia/2007-10-04/ARTICULO-WEB-NOTA_INTERIOR-3751257.html>
ARTICULO-WEB-NOTA_INTERIOR-3751257.html <http://www.eltiempo.com/tiempoimpreso/edicionimpresa/justicia/2007-10-04/ARTICULO-WEB-NOTA_INTERIOR-3751257.html> >.
2 Corte Penal Internacional sigue pista a la parapolítica, asegura su fiscal
jefe, Luis Moreno Ocampo. El Tiempo, Bogotá, October 21, 2007,
<http://www.eltiempo.com/justicia/2007-10-21/ARTICULO-WEB-NOTA_ <http://www.eltiempo.com/justicia/2007-10-21/ARTICULO-WEB-NOTA_INTERIOR-3775574.html>
INTERIOR-3775574.html <http://www.eltiempo.com/justicia/2007-10-21/ARTICULO-WEB-NOTA_INTERIOR-3775574.html> >.
3 Ibid.
4 Ibid.
5 Ibid.
"No podrá haber paz mientras subsistan diferencias tan profundas,
desproporcionadas e irritantes en la suerte de las personas y de los pueblos."
- José Alvear Restrepo
"Peace is not possible as long as such profound, disproportionate, and
aggravating differences exist in the fate of persons and peoples."
- José Alvear Restrepo



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