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

Colombia – Peace process – Transitional justice

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.

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 in 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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Quotes

Documents (2)

Glossary (4)

Definition

Public international law

Public international law is the system of laws governing relations between states and other subjects of international law. Unlike national law, there is no central legislative organ. Sources of public international law include general principles of law, treaties, and customary law.

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Insight

Colombia

For decades, Colombia has suffered under an armed conflict that particularly affects the civilian population. In the course of this conflict (and after), 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.
 
In light of the ongoing violence suffered by human rights defenders, trade unionists and activists, and the crucial importance of their work for a free and democratic society, there is an urgent need to take legal action and deter future attacks. The same applies to the widespread sexual violence against women, which is committed by all parties to the conflict and is part of the military strategy. There is a real need to challenge the impunity often enjoyed by those responsible, especially by higher ranking officials. Impunity is also rife when it comes to the impact of transnational corporations' business practices in Colombia. The role of companies in human rights violations is rarely investigated, let alone examined before a court.

In light of the above, 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.  Since to date there have been no effective investigations against high-level state officials in Colombia, ECCHR and its Colombian partner organizations are also calling on the International Criminal Court (ICC) to take action.

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