Groningen Journal of International Law

International Law Under Construction


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The Colombian Special Jurisdiction for Peace: Its Statutory Law and the Road Ahead for the Peace Process

Salvador Herencia Carrasco | shere045@uottawa.ca

Introduction

The Special Jurisdiction for Peace (SJP) is the judicial branch of the Integrated System of Truth, Justice, Reparation and Non-Repetition (Integrated System) which was established in the Peace Agreement signed between Colombia and the FARC-EP. This Agreement was approved by Congress in November 2016. The SJP has the mandate to investigate, prosecute and convict those with the gravest responsibility for crimes perpetrated in the internal armed conflict, which lasted more than fifty years.

To achieve peace, a constitutional amendment was adopted in 2012 to allow the government to negotiate a possible agreement with the FARC and other illegal armed groups. In 2016, a new constitutional amendment was adopted to prioritize the adoption of the legal framework to implement a peace agreement. This means that the Integrated System, *including the SJP, has constitutional status. In Colombia, laws implementing the Constitution are called statutory laws (leyes estatutarias), with special hierarchy and safeguards. Any amendment or modification to these laws requires a qualified majority in Congress as well as a mandatory constitutional review by the Constitutional Court before being signed into law.

My purpose is not to bore you with Colombian constitutional procedural regulations but to help clarify the debate around the SJP that has taken place during the past few months and what this could mean to the Peace Process. Consequently, it is important to understand the existing protections provided by statutory laws.

Statutory Law of the SJP: A necessary tool to provide legal certainty, due process and accountability

The SJP requires a procedural law to regulate its operations. This includes the competences of each chamber, the legal recourses on behalf of victims, the rights of defendants, as well as sentencing schemes, among other topics. Some of these provisions are established in others laws; however, this bill regulates all the procedures applicable to the SJP.

In August 2017, the government led by former President Juan Manuel Santos submitted to Congress the procedural bill of the SJP, which was approved in November of that year. The Constitutional Court determined its constitutionality, albeit with certain modifications, in August 2018. However, the full text of decision C-080/2018 was only published last December.

After the review of the Constitutional Court, the President can sanction the law or veto it. Due to the nature of a statutory bill and its mandatory prior judicial review, the President may only object to it for political reasons. It is important to remember that in August 2018, Mr. Ivan Duque assumed the Presidency, whose political party, the right-wing CDU led by former President Alvaro Uribe Velez, has been critical of the Peace Agreement.

In a televised address on 10 March, President Duque partially vetoed the Statutory Law of the SJP. By making the case against apparent political inconveniences, the President sent this bill back to Congress. Since then, public opinion has been divided over the future of the SJP and the peace process as a whole. What followed has been almost two months of public debate and accusations from all sides of the political spectrum. On 8 April, a majority in the House of Representatives rejected the vetoes presented by the Executive, leaving the final decision to the Senate.

The end of this story is Colombian magical realism at its best. On 30 April, 47 senators voted to reject the objections presented by the President. However, the speaker of the Senate and member of the ruling party considered that the required quorum to reject the objections was 48 votes. On 2 May, senators of the opposition left the plenary to prevent a new voting from taking place, considering that the first voting was enough to reject these objections. Now, the Constitutional Court must decide how many votes were required in the Senate to reject the presidential objections to the statutory bill of the SJP.

Whether it was 47 or 48 votes, this shows the divided political landscape regarding the peace process. For the purpose of the SJP, this single vote difference is fundamental. Under Colombian law, if Congress rejects the objections, the President must sanction the law. If the President still refuses to sign the bill, then the President of Congress is authorized to sanction it into law.

It is clear that the government does not have the necessary votes to accept the political objections, but does the opposition have the numbers to reject it? The Constitutional Court will have the final say on this.

 The nature of the presidential objections and the road ahead

As stated above, a statutory law goes through a constitutional review before its approval. Because the Court has the mandate to uphold the Constitution, the President is obliged to follow the decisions and interpretations made by the Constitutional Court.

The government presented six objections to the bill. These objections refer to the following issues: (i) compensation to victims by members of FARC-EP; (ii) the prioritization of cases by the SJP; (iii) verification procedures by government agencies to determine who is a member of illegal armed groups; (iv) practice of evidence on extradition cases; (v) limits to investigations carried by the Attorney General (Fiscalía General) on persons being investigated by the SJP; and (vi) the participation of parties that are not members of the Armed Forces of the FARC-EP.

Dejusticia, a Colombian think-tank, presented to Congress a report concluding that the first four of the six political objections listed above had already been addressed and decided by the Court in its decision C-080/2018. It is important to understand that in complex scenarios like the implementation of the peace process, the rulings of the Constitutional Court are the mandatory legal companion to a bill. Therefore, presenting objections to matters already decided by the Court would be illegal. The last two objections could be solved by a mere interpretation of other laws.

The reasons behind these objections are unclear, particularly if the Court had previously analyzed in detail all the provisions of the statutory bill of the SJP. Some speculate that these were made in order to satisfy the political base of the party. Others consider that this was a maneuver to test majorities in Congress. Whatever motivation existed, the outcome would have been the same: a mandatory constitutional review by the Constitutional Court.

These past two months have been hard on the peace process. There is no shutdown of the SJP but this legal uncertainty has created doubts for victims and people that have voluntarily surrendered to the SJP. One needs a set clear of rules to impose criminal penalties. Although the system is not at that stage yet, this is just one of many examples that make the case for the need for clear procedural law.

The government that negotiated the peace agreement adopted a series of constitutional and legal protections. Their purpose was to shield it from political turmoil like the one that we have seen in the past months. Some people viewed it as critical when former President Santos deposited the Peace Agreement before the United Nations. Having the support of foreign governments and a Security Council mission monitoring the implementation of the peace agreement is proving to be an effective shield safeguarding the progress so far. 

Conclusions

For academic reasons, I was in Bogota during the first days of May. As I was reading the news and looking at the billboards on the streets in favor and against the SJP that illustrate this post, I remembered a member of the Selection Committee asking me what I could bring to the table if I were selected as amicus to the SJP. My answer was “prudence and distance”.

This post has focused on the presidential objections of the statutory bill of the SJP and the role of the Constitutional Court. And perhaps that is not bad news. Despite the political and personal confrontations that we have seen, this past few months have also showed a great support from civil society organizations, academia, foreign governments and the United Nations. All have expressed, in unequivocal terms, the need to have a fully functional SJP.

I believe the SJP will have, sooner rather than later, a statutory legal basis. These debates are necessary to test our commitment to a peace process. This process can be heartbreaking. The current legal uncertainty can create distrust among victims and those members of the Armed Forces and the FARC-EP that are voluntarily surrendering to the SJP. However, in the long run, it is important to have these discussions and to have a system of checks and balances in place.

As former President Santos says on his memoirs regarding the peace process, “La Batalla por la Paz”, this Agreement was not going to easy and it was focused around the centrality of victims. The fact that Colombia is discussing the future of the SJP in procedural and constitutional terms is positive and provides us with a small glimpse of capacity-building.

SHC- Foto

Salvador Herencia Carrasco is the Director of the Human Rights Clinic at the Human Rights Research & Education Centre of the University of Ottawa. He is part of an Amicus for the Colombian Special Jurisdiction for Peace. The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of any of the organizations listed above. Twitter: Sherencia77

 

 


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Duty and semantics: Can legal responsibility under the Genocide Convention be avoided by circumventing use of the term “genocide”?

Narissa Ramsundarnarissa.ramsundar@canterbury.ac.uk

I. Introduction

Today, with the rise of live media broadcasting, journalists can report on the threat of genocide as events unfold on the ground. The instantaneous transmission of news may raise state awareness that a genocide is imminent. So far, there have been examples whereby state responses to such reports have tended to downplay the intensity of the killings. This was prominently demonstrated in the responses to the Rwandan genocide that occurred in April 1994. President Clinton in a radio address on the 30th of April, 1994, some 3 weeks after the genocide spoke of “mass killings of civilians in Rwanda.” According to Samantha Power, [p. 359]. The Rwanda example is by no means unique, and states’ mistaken belief that circumvention of the term “genocide” somehow avoids legal responsibility under the Genocide Convention (GC) and other instruments proscribing Genocide remains persistent. Continue reading


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TWAIL Coordinates

Luis Eslava | L.Eslava@kent.ac.uk

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Tenant purchase borrowers in front of their house in rural Puerto Rico (c. 1941–42). FSA-Office of War Information Collection. Library of Congress, Washington, D.C., USA.*

Third World Approaches to International Law, best known by its acronym TWAIL, is a dynamic, intentionally open-ended and decentralised network of international law scholars who think about and with the Third World.

Within the universe of TWAIL, the ‘Third World’ refers to that expansive and usually subordinated socio-political geography that, during the mid-twentieth century, came to be seen as ‘non-aligned’ – belonging neither to the ‘free’ nor to the ‘communist’ world. Today the Third World is more often referred to, however, as the ‘developing world’, the ‘post-colonial world’, or the (Global) South. In our intensely unequal, racialised, gendered, environmentally precarious global order, confronting a proliferation of Souths in the North and Norths in the South, this socio-political geography can perhaps be better characterised as ‘most of the world’.

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The Truth under Siege: Does International Humanitarian Law Respond Adequately to Information Warfare?

Vishakha Choudhary | vishakhac995@gmail.com

The significant threat posed by disinformation campaigns in armed conflicts is not a novel concern. Its first prominent manifestation can be traced back to a fabricated telegram alleging the sabotage of the cruiser USS Maine, which led to the outbreak of the Spanish-American War. Arquilla and Ronfeldt, leading academicians on Cyber warfare, describe this phenomenon as ‘Netwar’, the process of “trying to disrupt, damage, or modify what a target population ‘knows’ or thinks it knows”.

As traditional methods of warfare invite increased scrutiny, resort to Netwar has become commonplace, fueled by the proliferation of media platforms. Fake news disseminated through Facebook was instrumental in inciting persecution of Rohingyas in Myanmar and information broadcasted over the radio fuelled hate crimes against Tutsis in Rwanda. Moreover, Russian cyber operations have reportedly led to a diplomatic crisis in the Gulf since 2017 and spurred an internal conflict in Ukraine. Pertinently, non-state actors have also turned to disinformation campaigns to advance their cause, as evinced by ISIS’s twitter operations. This post discusses the enforceability and fortitude of International Humanitarian Law (‘IHL’) norms against this form of information warfare. Continue reading


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The Universal Declaration at 70: What Next for Human Rights?

This post is a summary of the keynote lecture given by Professor Gearty during the workshop ‘The Universal Declaration at 70: What Next for Human Rights?’ on 26th November 2018. The event was co-organised by the Groningen Journal of International Law and the University of Groningen’s Centre for Religion, Conflict and Globalisation.

Professor Conor Gearty 

How serious are current threats to the post-war international order of which the protection of human rights is such a central part?

Three potential challenges in particular come immediately to mind.  

First there is the outright rejection of the very idea, with states organizing themselves formally around systems of rule in which individuals are allowed to be explicit casualties of passing state interests.  Of course, not even the worst states put it quite like this, and with the passing of the era of the Cold War no substantial ideology sets its face against human rights in quite this explicit way: indeed, not even the Soviet Union did so at its height, preferring a different version of human rights (economic and social rights) to having none at all.

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Are States accountable for modern slavery?

Dr Philippa Webb philippa.webb@kcl.ac.uk
Dr Rosana Garciandía | rosana.garciandia@kcl.ac.uk

Tackling modern slavery: gaps to uncover

Contemporary forms of slavery continue to be a major challenge in the 21st century. International law prohibits slavery, human trafficking and forced labour, and states are generally committed to eliminating these human rights abuses, but over 25 million people were in modern slavery on any given day in 2016 (Global Estimates of Modern Slavery). As the UN Special Rapporteur on Contemporary Forms of Slavery pointed out in her latest report to the General Assembly, the scale of the phenomenon is even larger than what statistics indicate (para. 8). Continue reading


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Can top Italian officials be prosecuted and tried by the ICC for complicity in the crimes committed against migrants in Libya?

Andrea Preziosi | AMP711@student.bham.ac.uk

Background

The cooperation between Italy and Libya with the objective of curbing migratory pressure on Italian shores and EU external borders has attracted a great deal of criticism in light of the widespread pattern of human rights violations against migrants taking place on the war-torn territory of the African state. It was inaugurated in the early 2000s and strengthened by way of the 2017 Memorandum of Understanding. The former UN High Commissioner for Human Rights has condemned the assistance provided by Italy (backed by the EU) to the Libyan Cost Guards to intercept migrants at sea and prevent them from leaving the country, where they are confronted with “unimaginable horrors”, including torture, rape and killing. The Italian strategy has sought to involve not only internationally-recognised actors, but also local tribes that control Libyan territorial borders and, reportedly, armed groups implicated in the trafficking of migrants. Despite rising criticism, the newly elected Italian government has adopted an even more restrictive policy to tackle migration, as demonstrated by the frequent episodes of boats carrying hundreds of migrants coming from Libya being prevented entry to Italian ports.

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