Colombia: Amicus Curiae regarding the Special Jurisdiction for Peace

Human Rights Watch filed the following amicus curiae to the Colombian Constitutional Court regarding Constitutional Amendment 1 of 2017, which created the Special Jurisdiction for Peace, a judicial system negotiated with the FARC as part of the talks that resulted in a peace agreement in November 2016 after more than 52 years of conflict.

Honorable Justice Luis Guillermo Guerrero

Colombian Constitutional Court

Palace of Justice

Bogotá, D.C. - COLOMBIA

Case: RPZ-003

Subject: Human Rights Watch Amicus curiae on Constitutional Amendment 1 of 2017

José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States, presents this amicus brief to the Honorable Constitutional Court of Colombia in case RPZ-003 concerning Constitutional Amendment 1 of 2017. For that purpose, we respectfully state:

1. Purpose and Summary of this Submission

Human Rights Watch respectfully requests that the Colombian Constitutional Court accept this submission for its consideration of the international legal arguments that are relevant to its assessment of Constitutional Amendment 1 of 2017.

While applauding the peace process between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas, Human Rights Watch has repeatedly raised concerns regarding shortcomings in the accord that could undermine justice for war crimes and asked authorities

to address these flaws in the legislation implementing the accord. Unfortunately, two key flaws were included in Constitutional Amendment 1 of 2017: (1) an overly broad provision on political participation for FARC guerrillas; and (2) an indefensibly rigid definition of "command responsibility" for members of the armed forces that could impede efforts to secure accountability.

2. Political participation for FARC guerrillas

Constitutional Amendment 1 of 2017 allows FARC war criminals to run and hold public office while serving their sentences. Under article 20, "the imposition of any sanction in the [Special Jurisdiction] will not bar [anyone] from political participation nor will it limit any right, active or passive, of political participation."^[1]

Human Rights Watch has repeatedly expressed concern that this language in the peace accords allows those responsible for grave abuses to run or hold public office even while serving their sentence.^[2] While we share that a fundamental aim of the peace process is to allow the FARC to pursue their political objectives within the democratic arena, such participation in politics could seriously undermine the sanctions imposed by the Special Jurisdiction for Peace

To avoid this result, Human Rights Watch requests this Honorable court to determine that the political participation of an individual held criminally responsible for war crimes, crimes against humanity and grave human rights abuses is subject to full and unconditional implementation of the sanctions issued against them by the Special Jurisdiction for Peace.

3. Command responsibility for officers within the Colombian armed forces

As explained below, the command responsibility definition in article 24 of Constitutional Amendment 1 of 2017 departs from the definition under international law in ways that could thwart efforts to hold military commanders accountable to the extent international law requires.^[3]

1. Command responsibility is not a form of strict liability

Under article 24, "command responsibility cannot be based exclusively on the rank, hierarchy, or competence" of a military officer. As a preliminary matter, we note that such language is consistent with the definition of command responsibility under international humanitarian law, which is clearly not based on strict liability- a form of liability under civil law that arises even the damage is caused without fault.^[4] For example, in the Kordic and Cerkez case the International Criminal Tribunal for the former Yugoslavia (ICTY) noted that:

It should be emphasized that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he 'knew or had reason to know' of the offences and failed to act to prevent or punish their occurrence. Superior responsibility, which is a type of imputed responsibility, is therefore not a form of strict liability.^[5]

2. Standard of knowledge

Under article 24, prosecutors must prove that commanders had "knowledge based on the information at their disposal before, during and after the commission of the respective conduct," as well as "actual or updatable knowledge of the commission of these crimes." Such language could be interpreted in a manner that is inconsistent with the standard of knowledge under international law.

The standard of knowledge to hold commanders criminally responsible under international humanitarian law is if they knew or had reason to know and should have known about the crimes. This means, as the Appeals Chamber of the ICTY noted in the "Celibici" case that the superior can be responsible if "information was available to him which would have put him on notice of offences committed by subordinates."^[6] The availability of such information can be proven through a range of indicia, including, amongst others, the tactical situation, the level of training and instruction of subordinate officers and their troops, the number, type, and scope of the abuses, as well as the logistics involved, and the modus operandi of the crimes.^[7] Additionally, the "had reason to know" standard requires only general information about the possibility of crimes, not specific knowledge about discrete incidents.^[8]

The standard of knowledge under international law may also encompass criminal liability for commanders who fail to remain informed of the crimes committed by their subordinates. While other international criminal tribunals have limited constructive knowledge to a more restricted standard of knowledge, judges of the International Criminal Court (ICC) have expressed the view that, at least under the "should have known" standard in the Rome Statute, military commanders could face criminal liability if they fail to remain informed about their subordinates' crimes.^[9] The ICC pre-trial chamber noted in Bemba that "the 'should have known' standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime."^[10]

3. Effective control standard

Under the "command responsibility" definition in Constitutional Amendment 1 of 2017, prosecutors must prove "effective control over the respective conduct" through a range of "concurring" criteria.

However, under international law, command responsibility arises when commanders have effective control over the troops responsible for the crimes, not over the criminal conduct itself. In their case-law, the ICC and other international tribunals have defined "effective control" as the commander's material ability to prevent or repress the commission of the criminal conduct or to submit the matter to competent authorities afterwards.^[11]

While the criteria included in article 24 are similar to some of the evidentiary elements included in case-law of international courts, under international law these criteria are merely indicative, and are only some of a broad range of indicators of effective control, with proof of effective control largely case specific.^[12] For example, in the Bemba case, the trial chamber of the International Criminal Court noted that these factors, and others, "may indicate" the existence of effective control.^[13] Similarly, international tribunal case-law describes these factors as mere "indicators," while noting that these are "more a matter of evidence than of substantive law, and … are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate."^[14]

In addition, case-law of international courts has clarified that some of the factors included in article 24 are not decisive factors for the purposes of command responsibility. In particular, under international law whether or not a commander enjoys de jure authority is not determinative to establish criminal liability on the basis of command responsibility. So, while under article 24 commanders would bear criminal responsibility only if the crimes were committed "within the area of responsibility assigned to the unit under his command", the ICC Prosecutor has noted that the ICC in the Bemba case did not treat this as a requirement of international law. Indeed, the court ruled that Jean-Pierre Bemba of the Democratic Republic of Congo bears criminal responsibility for crimes committed by troops operating in the Central African Republic ^[15]

Similarly, international law does not require, unlike article 24, that the commander have "legal and material ability to give orders, modify them, and enforce them" (emphasis added). Specifically, if the evidence establishes that the commander, in practice, had material ability to effectively control forces, it is not essential that he or she also had formal legal authority. For example, in the "Celebici" case, the ICTY convicted defendant Zdravko Mucic, who lacked legal authority to give orders in the Celebici detention camp, but had de facto authority. The Court noted that:

The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met. Mucic's argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts.^[16]

Human Rights Watch respectfully requests this court to determine that the Special Jurisdiction for Peace should apply the well-established definition of command responsibility under international law to military officers investigated for their role on war crimes or crimes against humanity.

4. 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 Constitutional Amendment 1 of 2017.

José Miguel Vivanco
Human Rights Watch

[1] "Acto Legislativo 1 del 4 de abril de 2017 por medio del cual se crea un título de disposiciones transitorias de la Constitución para la terminación del conflicto armado y la construcción de una paz estable y duradera y se dictan otras disposiciones" [Constitutional Amendment 1 of 2017], April 4, 2017, http://es.presidencia.gov.co/normativa/normativa/ACTO%20LEGISLATIVO%20N%C2%B0%2001%20DE%204%20DE%20ABRIL%20DE%202017.pdf, art. 20.

[2] Human Rights Watch, "Analysis of Colombia-FARC Agreement," December 21, 2015, https://www.hrw.org/news/2015/12/21/human-rights-watch-analysis-colombia-farc-agreement; Human Rights Watch, "Letter to President Santos on the new peace agreement with the FARC," November 23, 2016, https://www.hrw.org/news/2016/11/23/letter-president-santos-new-peace-agreement-farc. See also Human Rights Watch, "Letter to President Santos on Future of Peace Process," October 6, 2016, https://www.hrw.org/news/2016/10/06/letter-president-santos-future-peace-process

[3] Constitutional Amendment 1 of 2017, art. 24. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), arts. 86-87; Statute of the International Tribunal for the Prosecution of Persons Responsible for Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991 (ICTY Statute), art. 7(3); Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), art. 6(3); Statute of the Special Court for Sierra Leone (SCSL Statute), art. 6(3); Rome Statute of the International Criminal Court (Rome Statute), art. 28.

[4] See, e.g., fn 3.

[5] Prosecutor v. Kordic and Cerkez (Trial Chamber), ICTY Case No. IT-95-14/2-T, February 26, 2001, https://www.legal-tools.org/doc/d4fedd/pdf/ (accessed May 16, 2017), para. 379.

[6] Prosecutor v. Mucić et al. ("Čelebići") (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed May 16, 2017), para. 243.

[7] See, e.g., Prosecutor v. Hadžihasanović and Kubura (Trial Chamber), ICTY, Case No. IT‐01‐47‐T, March 15, 2006, para. 99; Prosecutor v. Mucić et al. ("Čelebići") (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed May 16, 2017), para. 243; Prosecutor v. Zlatko Blaškić (Appeals Chamber), ICTY Case No. IT-95-14-A, July 29, 2004, https://www.legal-tools.org/doc/88d8e6/pdf/ (accessed May 16, 2017), para. 69.

[8] Prosecutor v. Mucić et al. ("Čelebići") (Appeals Chamber), ICTY, February 20, 2001, paras. 238 and 241("This information does not need to provide specific information about unlawful acts committed or about to be committed."); Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe (Trial Chamber), ICTY, February 25, 2004, para. 629; Prosecutor v. Nahimana, Barayagwiza and Ngeze (Appeals Chamber), ICTR, Case No. ICTR 99-52-A, November 28, 2007, para. 791; Prosecutor v.Halilovic(Trial Chamber), ICTY, Case No. IT-01-48, Judgment, November 16, 2005, para. 65.

[9] Prosecutor v. Mucić et al. ("Čelebići") (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed May 16, 2017), para. 243; Prosecutor v. Jean-Pierre Bemba Gombo (Pre-trial chamber), ICC, Case No. 01/05-01/08, "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo," June 15, 2009, https://www.legal-tools.org/doc/07965c/pdf/ (accessed May 16, 2017), para. 433.

[10] Prosecutor v. Jean-Pierre Bemba Gombo (Pre-trial chamber), ICC, Case No. 01/05-01/08, "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo," June 15, 2009, https://www.legal-tools.org/doc/07965c/pdf/ (accessed May 16, 2017), para. 433.

[11] See, e.g., Prosecutor v. Jean-Pierre Bemba Gombo (Trial Chamber), ICC, Case No. 01/05-01/08, "Judgment pursuant to Article 74 of the Statute," March 21, 2016, https://www.legal-tools.org/doc/edb0cf/pdf/ (accessed May 16, 2017), para 183; Prosecutor v. Mucić et al. ("Čelebići") (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed May 16, 2017), para. 378; Prosecutor v. Mucić et al. ("Čelebići") (Appeals Chamber), ICTY, Case No. IT-96-21-T, February 20, 2001, https://www.legal-tools.org/doc/051554/pdf/ (accessed May 16, 2017), para. 256; Prosecutor v. Zlatko Blaškić (Appeals Chamber), ICTY, Case No. IT-95-14-A, July 29, 2004, https://www.legal-tools.org/doc/88d8e6/pdf/ (accessed May 16, 2017), para. 69; Prosecutor v. François Karera (Trial Chamber), ICTR, Case No. ICTR-01-74-T, December 7, 2007, https://www.legal-tools.org/doc/7bc57f/pdf/ (accessed May 16, 2017), para. 564.

[12] Prosecutor v. Jean-Pierre Bemba Gombo (Trial Chamber), ICC, Case No. 01/05-01/08, "Judgment pursuant to Article 74 of the Statute," March 21, 2016, https://www.legal-tools.org/doc/edb0cf/pdf/ (accessed May 16, 2017), para. 188; Prosecutor v. Momčilo Perišic (Trial Chamber), ICTY, Case No. IT-04-81-T, September 6, 2011, https://www.legal-tools.org/doc/f3b23d/pdf/ (accessed May 16, 2017), para. 148; Prosecutor v. Mucić et al. ("Čelebići") (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed May 16, 2017), para. 378.

[13] Prosecutor v. Jean-Pierre Bemba Gombo (Trial Chamber), Case No. 01/05-01/08, "Judgment pursuant to Article 74 of the Statute," March 21, 2016, https://www.legal-tools.org/doc/edb0cf/pdf/, para. 188.

[14] See, e.g., Prosecutor v. Pavle Strugar (Appeals Chamber), ICTY, Case No. IT-01-42-A, July 17, 2008, https://www.legal-tools.org/doc/981b62/pdf/ (accessed May 16, 2017), para. 254; Prosecutor v. Momčilo Perišic (Appeals Chamber), ICTY, Case No. IT-04-81-T, February 28, 2013, https://www.legal-tools.org/doc/f3b23d/pdf/ (accessed May 16, 2017), para. 87; Prosecutor v. Alex Tamba Brima (Trial Chamber), SCSL, Case No. SCSL-04-16-T, June 20, 2007, https://www.legal-tools.org/doc/87ef08/pdf/ (accessed May 16, 2017), para. 788.

[15] Prosecutor v. Jean-Pierre Bemba Gombo (Trial Chamber), Case No. 01/05-01/08, "Judgment pursuant to Article 74 of the Statute," March 21, 2016, https://www.legal-tools.org/doc/edb0cf/pdf/, paras. 700 ff.

[16] Prosecutor v. Mucić et al. ("Čelebići") (Appeals Chamber), ICTY, Case No. IT-96-21-T, February 20, 2001, https://www.legal-tools.org/doc/051554/pdf/ (accessed May 16, 2017), para. 256. See also, e.g., Prosecutor v. François Karera (Trial Chamber), ICTR, Case No. ICTR-01-74-T, December 7, 2007, https://www.legal-tools.org/doc/7bc57f/pdf/ (accessed May 16, 2017), para. 564.