Colombia - Peace Process - Transitional Justice

Amicus curiae brief on command responsibility in Colombia's Special Jurisdiction for Peace

Colombia - Peace Process - Transitional Justice

Amicus curiae brief on command responsibility in Colombia's Special Jurisdiction for Peace

The doctrine of command responsibility is a fundamental legal principle in international criminal law. As international crimes regularly include systematic practices, it is necessary to hold to account those most responsible of such practices and not only the direct perpetrators. The doctrine is set out in international legal standards such as Article 28 of the Rome Statute of the International Criminal Court (ICC). In April 2017, as part of the implementation of the peace agreement between the Government of Colombia (a State Party to the Rome Statute) and the FARC, the Colombian Congress passed a law which fails to meet the standards of the ICC on command responsibility.

Case

ECCHR has addressed this question of international law in an amicus curiae brief filed with the Colombian Constitutional Court at Bogotá on 28 July 2017 as part of the Court's assessment of the provisions on the Special Jurisdiction for Peace. In its submission, ECCHR emphasizes that the oft-amended formulation of the law contains gaps, including regarding military commanders' effective control over their subordinate units, and that the number of conditions to be met sets an overly high threshold for establishing the criminal liability of commanders. The amicus curiae makes specific reference to the Bemba judgment in March 2016, which constitutes the ICC's first conviction where the accused was found guilty under the principle of command responsibility.

Context

For decades, Colombia has suffered under an armed conflict that particularly affects the civilian population. In the course of this conflict, human rights defenders, trade unionists and activists have been labeled as guerrilla fighters, making them into ostensibly legitimate military targets for the Colombian army and paramilitary groups. The situation in Colombia – which is representative of many recurring global human rights violations – is a focus area of ECCHR's work. The goal is to hold accountable those responsible for international crimes, including the most powerful actors.

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glossary

An amicus curiae brief is a submission to a court setting out a legal position.
Transitional justice refers to a process undertaken in the aftermath of a violent conflict or regime to address injustices.
Public international law is the system of laws governing relations between states and other subjects of international law.
Command responsibility allows for commanders to be held liable for crimes (e.g. war crimes) committed by their subordinates.